The fall of Collegium - Should we be concerned?

Introduction

The 64th Report of the Parliamentary Standing Committee on the Judicial Appointments Commission Bill, 2013 seeks to set up a six member body under the Chairmanship of Chief Justice of India for the purpose of recommending names of individuals to the post of Judges of Supreme Court and the High Courts, to the President of India. By replacing the Supreme Court’s collegium system (Chief Justice and four senior most judges), the Judicial Appointments Commission (JAC) seeks to bring back the equal and active participation of both the Executive and the Judiciary in collaborative and participatory manner.

Approximately 275 posts of judges in various High Courts are lying vacant. The collegium system is ridden with inherent deficiencies which the present Bill seeks to cure such as opaqueness, lack of transparency, biasness and prejudice and minimum accountability.¹ The issue before us is that whether the Bill compromises, in any way, the independence of Judiciary which is the basic structure of the Constitution of India.²

Background

When Article 124(2)³ and 217(1)⁴ provide procedure for appointment of judges in higher judiciary, how did the ‘collegium’ come into existence? There is no mention of ‘collegium’ in the Constitution. The collegium system emerged when the word ‘consultation’ was subjected to interpretation in the following two judgements of the Court. The Supreme Court Advocates on Record Association v. Union of India⁵ gave primacy to the opinion of the Chief Justice of India, while In the Presidential reference⁶  case gave the concept of the collegium system which is being followed till the present times. It has been a matter of great criticism that the direction contained in those judgements can be done only through a proper legislation and through Constitutional amendment and not through adjudication.⁷

Tug of war between the Judiciary and the Executive, who is superior?

Can Judiciary’s view totally eclipse the view of the executive forbidding the executive to evaluate it before formulating its advice to be tendered to the President? When the view of the Judiciary is same as that of the Executive, there is no question of primacy. The question of giving primacy to the opinion of any of the consultees arises only when there is conflict of opinion. The Judiciary would have the advantage of the views of both these consultees because it is best suited to assess the question of suitability on the proposed candidates. From that point of view great weight must be attached to the opinion of the Chief Justice of the High Court. In the overruled case of S. P. Gupta v. Union of India⁸, the opinion of the Executive regarding appointment was held more important on the ground that the Executive through the Legislators is answerable to the people regarding the functioning of the Judiciary.

The Bill appears to further the constitutional purpose that the selection should be made as a result of a participatory consultative process in which the executive and judiciary both are working together, none overpowering the other.

Now to the basic question of whether the increase of executive’s participation in appointments threatens the independence of Judiciary in any way.

Independence of Judiciary has two different aspects to it⁹

1. Administrative or Institutional Independence        
2. Decisional or Individual Independence   

While the latter is imperative for maintaining the dignity of judiciary and maintenance of impartiality, the former is also essential to curb any indirect interference in judicial function. Although the interpretations appear similar, they differ in terms of what constitutes a breach of the separation of powers. The doctrine of separation of power, so far as our Constitution is concerned, reveals an artistic blending and an adroit admixture of judicial and executive functions. The separation sought to be achieved by our Constitution is not absolute or complete. So far as the framers of our Constitution are concerned they had deliberately rejected the theory of complete insulation of the judicial system from the executive control. A breach under formalism would be a breach under functionalism only if the power in question either infringed on the core function of another branch or increased another branch's power.¹⁰ Thus, technically it does not violate the basic structure of the independence of Judiciary, but the adverse effect of political influences must be taken into account.

Lastly, An issue of concern

The Bill nowhere states that the recommendation of the said Committee would be binding, and therefore, the President is not barred from going against the recommendation of the committee. The word ‘consultation’ is different from ‘recommendation’.¹¹ While the quintessence of 'consultation' is deliberation, ‘recommendation’ may be subject to both acceptance or rejection much like the recommendations of the Law Commission.

Appointments of judges must, in themselves constitute a strong factor for independence and cannot be left to the exclusive discretion of the Executive and Legislature.¹² 

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^{1. See Government Of India Law Commission Of India, 'Reforms In The Judiciary – Some Suggestions' [2009] Report No. 230 1, 8 “As a matter of practice, a person, who has worked as a District Judge or has practiced in the High Court in a State, is appointed as a Judge of the High Court in the same State. Often we hear complaints about ‘Uncle Judges’. If a person has practiced in a High Court, say, for 20-25 years and is appointed a Judge in the same High Court, overnight change is not possible. He has his colleague advocates – both senior and junior - as well as his kith and kin, who had been practicing with him. Even wards of some District Judges, elevated to a High Court, are in practice in the same High Court. There are occasions, when advocate judges either settle their scores with the advocates, who have practiced with them, or have soft corner for them. In any case, this affects their impartiality and justice is the loser. The equity demands that the justice shall not only be done but should also appear to have been done.”↩} 

^{2. Sub-committee on Judicial Accountability v. Union of India, AIR 1992 SC 320; Kumar Padma Prasad v. Union of India, AIR 1992 SC 1213; High Court of Judicature, Bombay v. Shirish Kumar R. Patil, AIR 1997 SC 2631.↩} 

^{3. Article 124(2) reads as “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose... “↩} 

^{4. Article 217(1) reads as “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years.. “↩} 

^{5. Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC 268↩} 

^{6. In Re Special Reference, AIR 1999 SC 1↩} 

^{7. H.M.Seervai, Constitutional Law of India, (Silver Jubilee 4th Edition, Vol.1)↩} 

^{8. S. P. Gupta v. President of India, AIR 1982 SC 149↩} 

^{9. Frances Kahn Zemans, The Accountable Judge: Guardian of Judicial Independence, (1999) 72 S. CAL. L. Rev., p 625 “Dr. Zemans urges readers to consider the distinctions between decisional independence and institutional independence”↩} 

^{10. "Federalism." Free Online Law Dictionary. http://legal-dictionary.thefreedictionary.com/Federalism. Web. 9 Feb. 2014↩} 

^{11. Union of India v. Sankalchand Himmatlal Seth, AIR 1977 SC 2328; R. Pushpam v. State of Madras, AIR 1953 Mad 392↩} 

^{12. Principle 10 of the Basic Principles on the Independence of the Judiciary, 1985↩}

^{Author -  Vighnesh Kamat}