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Atul Pal

June 5th, 2023

The Contest Over the Collegium System in India

1 comment | 10 shares

Estimated reading time: 10 minutes

Atul Pal

June 5th, 2023

The Contest Over the Collegium System in India

1 comment | 10 shares

Estimated reading time: 10 minutes

The appointment of judges to High Courts and the Supreme Court in India has been in the spotlight in the last decade, following an Act passed by the government to change the process, nullified by the Supreme Court. Atul Pal examines the various arguments in favour of, and against, reforms to the ‘Collegium’ system, and how the current impasse may be addressed.  

 

April 2023 marked the 50th anniversary of the landmark Kesavananda Bharati vs State of Kerala and ANR case in India’s legal history. A 13-judge Constitution bench, the largest in Indian constitutional history, held — in a 7–6 verdict — that the Parliament had ‘wide powers’ but could not destroy the Fundamental Rights guaranteed to citizens in India’s Constitution. Parliament can amend items listed in Article 368 (‘Power of Parliament to Amend the Constitution…’) but no amended part could alter the basic structure of the Constitution. The bench also deliberated on the nature of Fundamental Rights of an individual, and limitations of the powers of the elected representatives of people. After the Kesavananda Bharati judgement, there have been 6 cases where Amendments to the Constitution by respective governments have been struck down by the Court on grounds of violation of Fundamental Rights; the striking down of the 99th Amendment to the Indian Constitution (the National Judicial Appointments Commission Act  National Judicial Appointments Commission Act (NJAC Act) of 2014) has been the most discussed of parliamentary acts in recent times.

The appointment and transfers of judges in the higher judiciary in India is regulated by the Collegium system. The Supreme Court Collegium is headed by the Chief Justice of India (CJI) comprising four other senior-most judges of the Court and the Central government; the High Court Collegium is led by the incumbent Chief Justice and two senior-most judges of that court in the states. The Collegium system has evolved through three major judgements of the Supreme Court (1981, 1993, 1998), known collectively as the Three Judges Cases.

In 2014, the government sought to change this ‘Collegium’ system by formulating the NJAC, proposed as a committee comprising of Chief Justice of India (Chairperson, ex-officio), two other senior judges of the Supreme Court, the Union Minister of Law and Justice (ex-officio) and two eminent persons to be appointed jointly by the Chief Justice of India, Prime Minister of India, and Leader of Opposition in the Lok Sabha (the Lower House in India’s Parliament). The NJAC would make appointments to the higher judiciary in India.

The NJAC Act (2014)  was declared ‘unconstitutional and void’ by a five-judge bench of the Supreme Court in 2015, after Writ Petitions were filed citing the violation of ‘independence of judiciary’. After the passing of the NJAC Act by Parliament, the then Chief Justice of India H.L. Dattu refused to be a part of it; after it was struck down, then Union Minister Arun Jaitley (also a senior lawyer) said ‘Indian democracy cannot be a tyranny of the unelected’, reiterating that strengthening the independence of the judiciary did not need to weaken the sovereignty of its Parliament.

The issue was reopened in 2022 by the Kiren Rijiju (Minister of Law and Justice) who criticised the Collegium system for lack of transparency, loopholes and non-accountability. The Centre had earlier expressed ‘strong reservations’, asking the Supreme Court to reconsider 20 files related to the appointment of High Court judges. The Minister went further, stating that the Court should not take up the task of appointing judges by itself. The Supreme Court responded citing delays by the Centre in approving appointments without mentioning its reservations; it argued that the government of the day had no right to delay the process of appointments made by the Collegium. With the Parliament again introducing the National Judicial Commission Bill, 2022 to regulate the procedure of appointment of judges, a new chapter of disagreement between the Judiciary and the Executive seems imminent.

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The Collegium system in not perfect, and has been questioned from time to time. Often termed as ‘unconstitutional’, it is criticised for being opaque, marred with casteism and nepotism. Article 124 and Article 217 of India’s Constitution deal with the appointment of judges but makes no mention of a Collegium system for the same. Even the Constituent Assembly, during the drafting of the Constitution, rejected the Collegium system three times with the Chair of the Drafting Committee Dr B. R. Ambedkar calling it ‘dangerous’. Ambedkar had said that apart from being independent, the judiciary needs to be ‘competitive’ as well. A report by a private individual stated that 33 and 50 per cent of Supreme Court and High Court judges respectively, are related to the ‘higher echelons of judiciary’, with the majority belonging to the upper social segments of the society. Inspite of Article 124(3) of the Constitution stating appointments of ‘distinguished jurists’ to the courts, prima facie it appears that judgeship is reserved for judges and well-sourced senior lawyers, with talent mostly being overlooked over personal allegiances.

Freedom of judiciary was the major reason for striking down the NJAC. The Supreme Court argued that the mere presence of Executive officials/appointees would question the basic structure of independence of judiciary as the appointments and judgements thereafter would be made by taking the government’s views into account. This would obviously not result in concocted narratives in all the cases but — as the dictum laid down by Lord Hewart clarifies, ‘justice must not only be done, but must also be seen to be done’  (The King v Sussex Justices ex parte McCarthy, 1924)presence of Executive officers/appointees would jeopardise actions. The intermingling of the judicial process between the Executive and Legislature would result in undermining democratic ideals, as chances of unconstitutional acts and malpractice will always prevail, considering vested interests of the ruling government.

The Apex Court’s 1975 decision to revisit the Kesavananda Bharati judgement over which the government of the time (led by then Prime Minister Indira Gandhi) was visibly upset is a classic example of why NJAC cannot hold firm ground. Recently, the Supreme Court has ruled on the appointments of Chief Election Commissioner and Election Commissioners by a Committee headed by the President of India instead of the Central government, following various petitions seeking reforms in their appointments. The decision was welcomed throughout the country and is a potent marker on why the Judiciary should be free from any kind of intervention from law-makers, especially when it comes to judicial appointments.

The Judiciary must only be accountable to the law but should also not become a self-perpetrating oligarchy; on the other hand, the presence of Executive officers/appointees in the judicial appointments processes jeopardises the fundamental doctrine of an ‘independent’ judiciary. The Memorandum of Procedure (MoP) — a document jointly framed by the government and Judiciary for judicial appointments in 1999, and reconsidered in 2015, needs to finalised. The objective of the MoP was to make the procedure of judicial appointments transparent and responsive to the needs of people but was stalled for a long time due to lack of consensus between the Supreme Court and the government. Issues like these need to be sorted out and more arrangements like the MoP should be deliberated upon, which not only ensure cooperation but also act as a healthy precedent.

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The views expressed here are those of the author and not of the ‘South Asia at LSE’ blog, the LSE South Asia Centre or the London School of Economics and Political Science. Please click here for our Comments Policy. 

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Banner image © Conny Schneider, 2022, Unsplash.

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About the author

Atul Pal

Atul Pal is a lawyer, and will join the LLM Program at LSE in September 2023. His interests are in law, history and international relations, and he has published on Indian Constitutional issues, sedition, biodiversity conservation, and international conflict.

Posted In: India

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