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The Collegium System and beyond

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THE SYSTEM & THE CONTROVERSY

Prior to 1993, the government appointed judges in the higher judiciary in accordance with the provisions of the Constitution. Following its verdict in the Second Judges Case in that year, the matter of appointment and transfer of judges was assumed by the Collegium of judges. In case of Supreme Court the Collegium consists of the CJI and four senior most judges, while in respect of High Court, it is headed by the CJ and two senior most judges.

The collegium system remains in vogue since 1993. Nearly two decades later in 2014 the Modi government wanted to broad base the appointment and transfer process by adding the representatives of the legislature, political executive and civil society into it. It passed the National Judicial Appointments Commission Act setting up the NJAC, an enhanced body, to replace the extant collegium system. But the supreme court struck down both the  99th Constitutional Amendment (done to pass the NJAC Act) and the NJAC Act. Prime reasons for the striking-down were they violated judicial independence and were against the basic structure of the Constitution. Incidentally, this doctrine of basic structure was formulated by the Apex Court itself in 1973 in a 7-6 judgement by its constitutional bench in the Keshavananda Bharati case .

The centre is  insisting that the Collegium system in its present form is opaque and hindering the process of appointment and transfer of judges in smooth manner. Differences are arising time to time with regard to some names in the collegium’s list which the government does not find acceptable. The matter becomes complicated when judiciary sends back same name/s to the government. This is contributing to delay in appointments and, in turn, rising numbers of pending cases.

How are the common men of the country looking at this ongoing stalemate? With the background laid down above it makes sense to try to empathise with both sides:

WHY IS JUDICIARY SO TOUCHY?

The apex court’s strong reservation against government’s initiative to bring changes to the collegium system of judges’ appointment and transfer can be understood if one revisits the circumstances in which the  system was born. The background may be traced to the 1970s and in the manner of Indira government’s handling of judiciary and judicial appointments. In particular, its appointing 2 CJIs by superseding worthy seniors in 1973 and 1977 left a wound in top judiciary.

It is true that Indira regime was punished by people for its autocratic tendencies and actions in 1977 polls, but her return to power in the 1980 polls probably resurrected judiciary’s concerns. Next year i.e., 1981 the apex court laid down the foundation of collegium system in the First Judges’ case, though it took more than a decade thereafter to give it a concrete shape. That happened in 1993 through its judgement in the Second Judges Case. Significantly, this happened during the era of Narasimha Rao led minority Congress government which was busy in managing numbers and faced charges of bribing members of a regional party. Since then and till 2014, the centre was ruled by coalition regimes. No single party had majority and no challenge to the collegium system. It was likely that a stable government may like to review the system if it did not deliver.

While judicial independence was an important objective for the change,  the collegium system was also  expected to bring ‘transparency’ in the matter of  appointment and transfer of judges and thus better serve public interest. Right since its beginning, the top judiciary carefully guarded the new system against any outside intervention- legislature or executive. Its opinion to an enquiry by the President in 1998, known as the Third Judges case, reflected this. As said already, it’s latest action in this matter was in 2015 when a five member bench annulled the 99th Constitutional Amendment  and the NJAC Act 2014 in a 4-1 judgement.

WHY CENTRE IS SO KEEN FOR A CHANGE?

Modi government has been generally reverential towards the judiciary. But on the collegium issue it has been firm and unyielding on the need for change. Why?

To start with, whether or not collegium system has brought in transparency or not remains debatable. Two of five judges of the bench criticised collegium system for lacking transparency, accountability and objectivity. The dissenting judge in NJAC case viz., Justice Chelmeshwar had remarked in 2015 collegium proceedings are absolutely opaque and inaccessible to the public and history barring occasional leak. Another retired SC Justice Ruma Pal had also remarked that the process of appointment of judges to the superior court ‘is possibly the best kept secret of this country. She also observed ‘the consensus within the collegium system is sometimes resolved through a trade off, resulting in dubious appointments with disastrous consequences for the litigants and credibility of the judicial system.’ Justice Ranjan Gogoi, former CJI, soon after retirement, in an interview in February 2021, admitted that the present system is not working for more than one reason and changes were needed in the way judges are selected and trained.

The reasons for the Union Law minister repeatedly stressing on opaqueness of the collegium system therefore seems reasonable.

Meanwhile, the stock pile of court cases is growing by the day despite the Collegium system and it apprehends that the people will ultimately hold the centre responsible for the inordinate delay they face in courts. Modi government has been working hard and with integrity leading the country to the status of a global power. The government probably is worried that the justice system presently has to do a lot to catch up with public expectations and it wants the system to improve rapidly. A similar concern was expressed by former CJI Ranjan Gogoi who said that ‘we want to have five trillion dollar economy but we have ramshackle judiciary’  How justified are the government’s concerns?

Some data: The total number of pending cases in three layers of judiciary in the country may reach 50 million shortly and the average pendency of the case in a subordinate court hovers around 6 years,   3 years and a month in high courts with some cases lingering for decades. As on August 2022, there were over 71000 cases pending in Supreme Court of which over 10000 were awaiting disposal for the last decade. If compared to another emerging economy Asian country like  South Korea, these are awfully high. In the latter country the overall procedure take between 8 to 16 months in a First Instance Court, 6 to 12 months in a High Court, and 1 to 2 years in Supreme Court.

The poor in India have been the worst sufferer of the inefficiency of the justice system. Former CJI Gogoi admitted that the judicial system is cumbersome and often fails to deliver justice in time. He added the people regret their decision to approach the court and it is the rich and the corporate world denizens who are better suited to take their chances in the court.  Many poor persons are languishing in jail for long years as undertrials. Some have been in  prison for 10, 20, 30 years for small crimes, President Murmu had observed herself as to how in some cases the person concerned had committed a petty crime such as having slapped another person! This must shock the nation as to what happens to ordinary people who have no money to appoint good lawyers and no listeners!

On the other hand the country has been accustomed to seeing how rich and powerful people having committed grave civil or criminal offences manage to get bail and roam freely taking advantage of the inordinate delays associated with court processes.

The popular discontent is also about cost of access to legal system, delay in hearings, numbers of adjournments, duration of proceedings and selectivity and biases in verdicts. With regard to verdicts in sensitive cases where public perceive selectivity or bias, their ire erupts like volcano in social media. In this technology age, the entire career (sometimes family) details of the concerned judge/s, anatomy of their past judgements and biases in judgements as perceived by people appear in social media platforms within 24 hours and these often are viewed by millions of Indians creating strong public opinion.  

The government’s concern probably stems from the fact that while the public hold it responsible for any deficiency in the justice delivery system, it has little or no control over the appointment of judges in higher judiciary! This makes the government to look at the justice system more holistically.

SELF IMPOSED LOAD

Considering the current course of the government-judiciary interaction on collegium, it appears the government is looking at deeper issues that underlie the collegium system and impinge on performance of the justice system. While the caseloads in the apex court are rising in natural course, whether more being added to it  due to its accommodative approach towards petitions filed on the ground of ‘violation of basic structure’?  In this connection, the views of Vice President Dhankar was very significant. He has kindled a debate for re-appraisal of basic structure doctrine. He asserted that the power of parliament to amend the constitution and deal with legislation is not subject to any other authority.

His observations may be examined in the light of the fact that the apex court, already under severe pressure of pending cases (34 judges saddled with over 71,000 pending cases), opened up the flood gate to a new genre of cases which are filed on the ground of violation of basic structure of constitution. The litigants belong to the political, commercial and NGO space and include vested interests. Some of them may be trying to stall these statutes passed by the parliament for own sectarian interests. Examples: CAA, Farm Laws, Abolition of Article 370. Future is likely to see more use of this platform. According to growing public perception the higher courts are becoming the venue for fighting political and commercial interest battles against the government.

Besides claiming top judiciary’s time, there are two other serious drawbacks attached to entertaining ‘basic structure’ kind of cases;

(1) Difficulties in reaching a consensus on what are ‘basic’ structures of the constitution. For example, the dissenting judge in the 5 member bench in NJAC had a difference of opinion on this point. Significantly, neither did Constituent Assembly nor did the bench in Keshavananda Bharati case try to delineate or identify the ‘basic features’; (2) Whichever way it gives verdict, the Court will be subjected to criticism by the losing party and get entangled into political processes. The manner in which politics are still being played on the apex court’s verdict on cases related to Ayodhya and exoneration of Sri Modi in Gujarat 2002 riot case are unmistakable indicators of future controversies. Eventually, this may undermine the common people’s respect and trust in its impartiality. This will not bode well for the country as judiciary’s credibility depends essentially on its remaining apolitical and neutral.

It may be argued that an even greater danger, which has remained imperceptible, is that the doctrine of basic structure gives the judiciary, what can loosely be called, some kind of veto power over parliament’s law making labour, which,  together with the exclusive power already in its own hand, to appoint and transfer of judges, without any role of legislature and executive, make the apex court a formidable centre of power without any checks and balances which may not have been envisaged by the Constitution.

THE BURDEN GETS HEAVIER AND HEAVIER

May be as a side effect of the public perception of the top judiciary’s power to undo the laws passed by parliament, litigants are moving against various other important government plans and programs that are harmful to their sectarian interests. The government is being dragged to the court on wide range of issues such as demonetisation, GST rules, hijab ban vis-a-vis dress code in school, provisions of the Gangster Act, demolition drive of unauthorised constructions, property confiscation of anti-CAA protesters, cutting of trees for construction of railway overbridges and so on. Petitions have also been filed against constitutional bodies like Election Commission on grounds such as objecting to its decisions as to number of phases polls are to be held in a state. Or, say against its decision on in how many EVMs VVPAT verification should be done to start with? The manner in which litigants are reaching the apex court for all and sundry issues may give an impression that the judiciary is breathing over the government’s shoulder round the year.

GOVERNMENT – ET TU?

Interestingly, in the wake of the apex court’s accommodative approach to petitions against the government, the latter has often been placing many critical matters pending with the court on back burner even though it was expected to act with speed and urgency e.g., CAA implementation. In sensitive issues, it tends to wait indefinitely probably hoping for court decision to come so that responsibilities for decisions would then pass on to the judiciary. Two important examples are the handlings of Shaheen Bagh and Anti Farm Laws protestors. No less worryingly, the government also seems to be pushing issues of social and cultural importance e.g., LGBTQ rights to the judiciary adding to the latter’s workload, while people certainly expects their elected representatives to deal with such issues in accordance with India’s civilizational ethos.

Ironically, the insistence of the centre to have a meaningful say in judges’ appointment does not go well with a culture of transferring own responsibilities to the higher judiciary. 

ATTACK UPON THE JUDICIARY

Both the judiciary and the government seems to be  contributing to the growing caseloads. While the judiciary does it through open door policy, the government adds to it by transference of own responsibilities on court’s shoulder. In the process, an aura of power & primacy is built around the top judiciary. In public perception the later has been acquiring the image of being a super government. It is blurring the distinctions between judiciary and other state organs and diminishing hopes of timely decisions on tens of thousands of cases awaiting disposal from a heavily loaded top judiciary in the public perception. This has another unintended negative consequence. Vested interests in the country have been known in the country attempting to influence the legislature and the executive, whom they perceived holder of power, using questionable means. In the changing scenario the judiciary may become their target.

The country was taken aback in January 2018 when four senior moist judges of the apex court held a presser raising a litany of problems including most importantly selectively assigning cases to judges by the then CJI. A bigger shock came in February 2019 from  media reports of the observations of a bench of the apex court hearing a lawyer’s affidavit claiming ‘larger conspiracy’ to frame CJI Ranjan Gogoi on sexual harassment allegations. The bench had expressed its anguish at the systematic attack to malign the judiciary, observed how people were trying to fix the court registry by money power, and sounded stern warning. In February 2021, former CJI Gogoi in a press interaction condemned how people with ‘power and loud voice’ try to target and malign others, including judges.

PEOPLE ARE THE MASTER

Ideally in a democracy all three organs of the state should remain within their domains and work in a spirit of co-operation. If any imbalance is caused by any organ, a reaction usually follows and the people suffer due to the tug of war. The recent course of events in Israel may be instructive in this connection. In real life, the balance can sometimes get tilted. The solution lies in recalibration and restoration of the balance. A practical solution to the present impasse over collegium system may be viewed in this light.

Reaching an agreement on the issue will be difficult if three prime organs of the state are driven by turf mentality. On the other hand if each of them consider the PEOPLE as MASTER and vow to serve them diligently the whole perspective changes and co-operation becomes natural. The Prime Minister of the country had set an example by calling himself as the ‘prime servant’ (pradhan sevak) of the people. The judiciary can follow suit.

There is no need to deify judiciary and expect them to do inhuman work. Like legislature and executive the judiciary are also human and they render extremely valuable service to the society. The other two organs must ensure that they are provided with sufficient number of judges, excellent remuneration, perks and all necessary infrastructure to discharge their functions efficiently. The country presently allocates less than 0.1% of GDP to the justice system which needs a serious reconsideration. At the same time, there need to be targets and performance measurements at every level of the judicial system like developed economy countries.

BEYOND COLLEGIUM- NEED FOR OUT OF BOX THINKING

As to the issue of appointment of judges in higher judiciary with which the collegium issue is concerned, probably both the government and the judiciary need to do out of box thinking. Considering the huge pendency of court cases, inordinately long time involved in their disposal and the imperative to bring up the justice system to the level of ideal amongst peer countries in these parameters, the number of judges in higher judiciary needs to be increased manifold.

Incremental growth will hardly suffice. For example, in order to dispose of the present stockpile and achieve a target of say 12 to 15 months disposal time for an average case, is not a paradigm shift in approach necessary? This will require joint (by all three state organs) assessment of sanctioned strength, scaling up judicial appointments accordingly to a much higher level, and moving to a new system of appointment in higher judiciary e.g., inducting best minds through all India examinations. Both the stakeholders viz. government and judiciary may think beyond the collegium system for a more radical solution of appointment and transfer of judges in the interest of people of India!

END

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