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}

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WE, THE PEOPLE OF INDIA...

(This is a Republic Day Special Post)

Hon'ble Members, my prayer is that the Constitution that you are going to plan may similarly be reared for Immortality, if the work of man may justly aspire to such a title, and it may be a structure of adamantine strength, which will outlast and overcome all present and future destructive forces.

 - Monday, the 9th December 1946 (Constitution Hall, New Delhi)

Dr. Sachchidananda Sinha (Provisional Chairman Constituent Assembly) in the very first address to the Constituent Assembly indicated that the Constitution of India is sought to be immortal and organic. True to the vision, India has the most comprehensive Constitution that ensures Justice, Liberty, Equality and Fraternity in the country. Moreover, we as a nation have constantly thrived to achieve the goal set forth by the makers of our constitution. The foundation of our Constitution dates back to May of 1934, when  Swaraj Party formulated the first ever scheme which promulgated the idea of self-determination paving path for a Constituent Assembly with representatives of all sections of Indian people. This action was taken after consistent demands made by Mahatma Gandhi since 1922, for a Constituent Assembly.

Swaraj will not be a free gift of the British Parliament. It will be a declaration of India's full self-expression, expressed through an Act of Parliament.                 
                                                                                                                   - Mahatma Gandhi.

The policy was approved by All India Congress Committee in Patna a few days later in May 1934 and confirmed at Faizpur in December 1936 only to be adopted in November 1939 by the Congress Working Committee. The Congress declared in that resolution that Recognition of India's independence and the right of her people to frame their constitution through a Constituent Assembly is essential. But, the idea was not favoured in 1940 by the Muslim League that was demanding separate Constituent Assembly for a separate nation in accordance with their gruelling ask for Pakistan. In the year 1945, Sapru Committee issued a report favoring the scheme. To end the political deadlock, the British Cabinet Mission propounded a different scheme which was acceptable to most of the parties. 

The Assembly was thus formed and it started to frame the Constitution of India. Dr Rajendra Prasad was elected as President of the Assembly, which met for the first time on 9 December 1946. Dr Bhimrao Ramji Ambedkar, was the prime architect of the Indian Constitution. The Assembly worked for 2 years 11 months and 18 days to build a Constitution with 395 Articles in 22 parts and 8 schedules consisting of almost 80,000 words.  The Constitution of India was adopted by the Constituent Assembly on 26 November 1949 and came into effect on 26 January 1950. This date of 26 January was chosen to commemorate the Purna Swaraj declaration of Independence of 1930.

 (http://soilmag.com/constitution-of-india-a-real-world-connect/)

On 24 January 1950, Dr Rajendra Prasad was elected as first President of India. This followed the discussion on election of new members and National Anthem. It was then decided that Vande Mataram shall be honoured equally with Jana-Gana-Mana and shall have equal status with it. The copies of the Constitution were signed by the President followed by the Prime Minister J. L. Nehru. The Constitution follows parliamentary system of government and the executive is directly accountable to the legislature. It envisages well established principles, procedure and structure, powers and duties of government, fundamental rights, directive principles and duties of the citizens (added later). The Constitution of India is federal in nature that declares us as a sovereign, socialist, secular, democratic, republic country. Union of India became Republic of India, which was no longer governed under the Government of India Act,1935. 

Dr Rajendra prasad concluded the Assembly with high hopes for the future - 

The country today is facing very many problems and my feeling is that the kind of work which we have now to do is different from that which we used to do two years ago. It requires greater devotion, greater care, greater application and greater sacrifice. I can only hope that the country will throw up men and ,women who will be able to take up the burden and fulfil the highest aspirations of our people. May God give us strength to do that.

The country has seen everything, from war to revolution to emergency to economic breakdown to nuclear tests to space programmes to corruption to nationalisation to globalisation. Today, India is growing as one of the super-powers in the world. Still, it has its own problems that requires immediate solution. The present President of India, Shri Pranab Mukherjee, on the eve of republic day of India 2014 raised similar concerns such as corruption, rise of hypocrisy in public life, incompetency of governments to strike social and economical progress. The President highlighted the need of better education and requisite infrastructure. The President also hoped that with the emergence of India as one of the fastest growing economies, India will be be able to continue its legacy of her Constitution. 

We must be open to all knowledge; to do otherwise would be to condemn our nation to the misery of a stagnant mire. But we should not indulge in the easy option of mindless imitation, for that can lead us to a garden of weeds. India has the intellectual prowess, the human resource and financial capital to shape a glorious future. We possess a dynamic civil society with an innovative mindset. Our people, whether in villages or cities, share a vibrant, unique consciousness and culture. Our finest assets are human.

And in this journey, the lawyers have to and have played an important role- be it at the time of 1975 emergency or the issue of protection and furtherance of Fundamental Rights, there has always been a silent Hero in the form of a Lawyer, fighting for a cause. Thus, we take this opportunity to reshare the following interview of Mr. Ram Jethmalani where he has elaborately discussed the duties of a lawyer:

http://www.youtube.com/watch?v=wZUSc6mBbHM  

To Conclude, IIT-Kharagpur Law Blog wishes you all a very Happy Republic Day. Every Indian understands the sanctity of the Constitution and importance of this day which was actually the day we found ourselves as India, as a nation. In the words of former President of India Dr A. P .J.  Abdul Kalam, we wish the nation peace, prosperity and happiness.

The Vision

Where is the peak, my Lord?
I ploughed and ploughed,
Where is the knowledge treasure, my Lord?
I sailed and sailed,
Where is the island of peace, my Lord?
Almighty, bless my nation
With vision and sweat resulting into happiness.  

JAI HIND!

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