The Indian democracy rests on three independent
pillars, legislative, executive and judiciary. The Constitution of India lays
down the framework for these organs to work independently but under a common
legal system. The Constitution makers of India felt the compulsion to
decentralize power and understood that the powers cannot be vested in just one
institution and thus on that notion, they created a system of checks and
balances. The separation of powers was necessary to maintain the balance among
all the institutions. The judiciary scrutinizes the legislative and executive
while on the other hand the parliament also works as a power checking body on
the executive and the judiciary. The Parliament was entrusted with making the
laws as deemed suitable for the situations and the Judiciary was invigorated
with the power to interpret these laws and make sure that they are congruent
with the feeling of Constitution. The Constitution makers entrusted the people
of India to choose their representative of the Parliament through elections and
the powers to appoint the Chief Justice and other judges was given to the
President on consultation with other judges.
The Indian judiciary system has a hierarchy of courts; Supreme Court at the apex followed by 25 High Courts that are established all over the states and union territories of India. At the bottom, there exist Subordinate Courts in the respective districts of the state. The Supreme Court of India is the final interpreter of any law and whatever judgements it passes, are binding on all the courts. The provision regarding the powers, its jurisdiction, independence of the institution and procedures are given under chapter V (A124 to A 147) of the Constitution. The Supreme Court is endowed with the responsibility to deal with conflicts, interpretation of laws, advisory functions etc. Powers like original jurisdiction, writ jurisdiction, appellate jurisdiction, judicial review are also vested upon the institution for the same reason. The article 50 of directive principles of state policy states that “The State shall take steps to separate the judiciary from the executive in the public service of the State”.
Under Article 126, the President has the power to appoint the Chief Justice of India. The senior most judge who has the highest experience in the Supreme Court is deemed fit for the post. The Chief Justice of India has the genuine ability to consult the President for appointment of judges in both the courts (given under Article 124(2) and Article 217 of the Constitution). The President with consultation of the Governor of the state, the Chief Justice of India and the Chief Justice of the relevant High Court appoints the judges in High court. However, it was not clear, who gets to make the final call. The word “consultation” was interpreted by the Supreme Court more than once which reflected by three such cases aka the “Three Judge Case”, the Supreme Court established the collegium system for appointment of judges in High Court and Supreme Court, by a precedent over a period of time.
Until 1973, the senior most judge of the Supreme Court occupied the post of the Chief Justice of India but the Indira Gandhi government broke this convention and AN Ray was appointed as the Chief justice of India, superseding three senior judges. This extraordinary event was in fact, an attempt to politicise the judiciary. The Indira Gandhi government wasn’t in good terms with the Judiciary because of a landmark judgement passed by the Supreme Court in “Kesavananda Bharti v. the State of Kerala”. A 13-judge constitutional bench with a margin of 7:6 ruled that the basic structure and principles of the constitution can never be altered by any Act passed by the parliament. AN Ray succeeded those three judges who ruled in the favour of this judgement. Following these events, a 7-judge bench of the Supreme Court in 1981, interpreted the word “consultation” mentioned under Article 124(2) and Article 217 for the first time and that came to be known as “The first Judge Case”. With a ratio of 4:3, the court held that the word “consultation” does not mean “concurrence”, and thus gave the power of appointments of judges to the Government of India. This judgement was further reviewed by a 9-judge bench in 1983 and the Supreme Court overturned their last judgement with a majority of 7:2. This came to be known as the “Second Judge Case” and the court established that the word “consultation” referred under Article 124(2) and Article 217 of the Constitution, implies “concurrence” with the Chief Justice of India. The judgement gave birth to the collegium system and transferred the determinative power for appointments of judges from Government of India to the Chief Justice of India. Now the recommendation made by the Chief Justice of India was binding on the government. To dilute this absolute power vested in the Chief Justice of India, the collegium included two senior most judges of the relevant courts in addition to the Chief Justice of India. The collegium was further remodified in 1998 in the “Third Judge Case” and now in addition to the Chief Justice of India, four senior most judges of the relevant court are a part of the collegium and if any of the two judges have an adverse opinion on a recommendation then the Chief Justice cannot send it the government.
Both Supreme Court and
High Court have separate collegium for the appointment of judges respectively.
There is a total of five judges in both the collegium including four senior most
judges and in case of High Court, the Chief Justice of the relevant court is
also in the collegium. Under this collegium system both the Parliament and the
Judiciary get a say in the appointment of the judges. The collegium recommends
the names of lawyers and judges to the Government of India. The Government also
sends recommendations for the appointment or transfer of judges to the Chief
Justice of the collegium.
When the collegium recommends their list of lawyers and judges to the Government of India, the centre is bound to review those names for character verification, national security clearance by the Intelligence Bureau (IB), competency or any other issues. The government can raise objections to the Chief Justice regarding the subject. But if the Chief Justice is not congruent with the objections provided by the government then he can reject their request and the collegium finally sends the recommendations a second time. Now this time, the Government of India comes under obligation to accept the recommendations.
The memorandum of procedure states that the process of recommendation of a judge, for a vacancy should start six months prior to its rise. There is a time limit of six weeks for the state to give the final names of the judges to the Union Minister of Law and Justice. The Law Minster then, on behalf of the Government of India gives these names to the collegium within a period of four weeks. The collegium then reviews these names and if the collegium approves the recommendation, then the Law Ministry submits the recommendations to the Prime Minister who then advises the President.
However, the process has its own flaws. For instance, there is no specific time limit for the centre to approve the recommendations provided by the collegium. It can only disagree and raise objections on names to the Chief Justice but if the collegium however sends the same recommendations again, then the President comes under mandatory obligation to appoint the judges. The qualities that a Judge should possess are non-ambiguous but when it comes to the selection of the perfect candidate, it becomes a matter of perspective. When the government of India disagrees with the recommendations of the collegium they exploit the very procedure and neither the final approval is given nor the objections regarding the recommendations are sent back to the collegium, thereby putting a stay on the procedure for the appointments.
The maximum strength of the judges in Supreme Court has increased to 34 over the years as per the need and work load on the institution; however, we still have 31 working judges only. The 25 High Courts have a current strength of 1079 judges, out of which 771 are permanent and other 308 are additional judges. As of 1st April, 2020, the judiciary is short by 394 judges. This 36% vacancies are still not occupied because the names never made it to the final approval. The data provided by the Supreme Court on 10th of December, 2019 held that 213 names for the appointments are pending and were also mentioned in the parliament later this year. This per se bears testimony to the inefficiency of the system owing to the technical imefficiency of the process. On the other hand, Parliament has its own reasons for disagreeing with the recommendations as it will be puerile to assume that the recommendation made by the collegium based on their individual opinions cannot be wrong. In fact, most of the judges in some way or the other, are related to previous judges. This nepotism and non-transparency in the system is often criticised by foreign lawmakers and the many judges of the Supreme Court and High Court itself.
In order to solve all these crises, the parliament in 2014 made the 99th amendment in the constitution and article 124A and 124B were inscribed for the establishment of a National Judicial Appointment Commission (NJAC). Both the houses, Lok Sabha and Rajya Sabha, also passed a National Judicial Appointment Commission Act, 2014 for the regulation of its functions. This act came into effect on 13th April, 2015 but was repealed by the Supreme Court later. Under this act, the appointment of Chief Justice of India, Chief Justice of High Courts, and appointment of other judges in High Court and Supreme Court was to be done by the President in consultation with the commission. The commission consisted of the Chief Justice of India, two senior most judges of the Supreme Court, the Union Minister of Law and Justice and two other eminent individuals as per nominated by a committee constituting of the Chief Justice of India, Prime Minister and leader of the opposition.
This amendment in the Constitution exclusively tried to replace the five judge collegium system with a more diverse six body commission but in doing so it tore the very fabric of the Constitution that make all these organs independent of each other. On 15th October, 2015 a five judge bench with a majority of 4:1 scrapped down this new system and declared the 99th amendment unconstitutional, as it encumbered the independence of the institution by politicising it.
The National judicial Appointment Commission Act didn't actually balance the power but instead transferred it from the collegium to the legislature. In fact, the 99th amendment made in the constitution included Article 124A (2), under which it exclusively transferred the power of final recommendation from collegium to the commission; no act or proceeding of the commission can be questioned or invalidated, even if there is a defect in the constitution of the commission itself. A judiciary at all costs should remain independent of any political influence as it is the apex body which is entrusted to safeguard the features of the Indian Constitution but Article 124C provided the Parliament with powers to regulate the procedure of the appointments using the commission as a tool. Indeed, the 99th amendment was unconstitutional and Supreme Court was right to nullify it but at same time, the flaws in the collegium system cannot be upheld as a justification for not appointing the judges. The onus is upon both the institutions to perform all the mandatory functions of the state and in order to do so, there is a dire need to come up with a more viable and transparent system.