This article is written by Janvi Johar, 2nd year student pursuing B.A.LLB (H) from Amity University, Noida.
These harsh comments made by our late former Finance Minister Arun Jaitley were right after the Supreme Court of India squashing the 99th amendment on the ground of infringement of the concepts of separation of powers and the basic structure doctrine, highlighting the controversy regarding the appointment of judges.
Since the establishment of our constitution, the independence of the judiciary with the free and fair appointment of judges has been of paramount importance and various steps have been taken to ensure the same. Till now there has not been a satisfactory system to safeguard the independence of the Judiciary. The Executive Appointment, the Collegium System, or the National Judicial Appointment Commission has its own pros and cons. Though the majority view is in favor of the Collegium System, there have been constant efforts to improve the same.
In this article, we shall not only throw light on such decisions but also talk about the long debate over ‘Collegium System vs. National Judicial Appointment Commission (NJAC)’ and the way forward.
The makers of our constitution adopted a consultative approach without any political interference for the appointment of judges. The norm of seniority, though not explicitly mentioned has always been followed for the appointment. However, the appointment of Justice A.N. Ray with superseding 3 senior judges led to review of this process and in the landmark First Judge transfer Case, it was held that the word “consultation” does not mean that the opinion of the Chief Justice of India would be binding on the President.
This judgment was overruled in 1993 through the Second Judge Transfer Case and the concept of the collegium was for the very first time introduced by the court. The clarification on the composition of collegium came from the Third Judge Transfer case. Thereafter many attempts and various recommendations on the need of changing this system were made. However, the collegium system still prevails.
Collegium System also called known as “Judges Selecting Judges” is headed by the Chief Justice of India (CJI) along with 4 other senior more judges of that court. One of the major benefits accorded to this system is of safeguarding the concept of separation of power, which is a part of the basic structure doctrine. It has also been seen that legislature and executive do not possess the legal knowledge and hence this system ensures appointment by judges, who have expertise in this subject. However, the Second Administrative Reforms Commission has pointed out that India is the only country where the Judiciary has the final say in its own appointment.
Having said that, one cannot simply deny the drawbacks of this system, which from time to time have been highlighted by various commissions, committees, reports and eminent personalities.
- Lack of Transparency and Accountability– With no eligibility criteria or an official procedure for selection, this system marks a collapse of the inter-institutional system prescribed by our Constitution under Article 124 and 217.
- Undemocratic Appointment– Nowhere mentioned in the Constitution of India, this system leaves no room for accountability to the citizens after appointment nor the citizens or their representatives have any say in their appointment.
- Inefficient Implementation– Increasing number of vacant positions has been attributed to the lack and inefficient implementation of this system.
- Opaque and Unconstitutional– No procedure has been yet established to check and evaluate the ‘reasonableness of appointment’.
- Prohibits the system of Checks and Balances– The limited role of the executive and the legislature deprives it of institutional checks and balances and makes public questioning seem pointless.
NATIONAL JUDICIAL APPOINTMENTS COMMISSION (NJAC) – THE NEW WAY FORWARD?
National Judicial Appointments Commission (NJAC) was a body introduced by the 99th Constitutional Amendment Act, 2014 to replace the collegium system. The composition of NJAC is as follows-
- the Chief Justice of India (Chairperson)
- two senior-most judges of the Supreme Court of India,
- the Union Law Minister, and
- 2 eminent personalities to be nominated by the Prime Minister, the Chief Justice of India (CJI), and the Leader of Opposition of the Lok Sabha.
The important question that needs to be answered is whether the National Judicial appointments Commission (NJAC) overcome the drawbacks of the Collegium System?
First and for most, this new system would solve the problem of the executive and the legislature having no say in the appointment. Secondly, the question of judicial accountability with proper checks and balances can also be solved. However, apart from these advantages, this system fails to cater to the other drawbacks of the prevalent collegium system.
Lack of transparency would still remain the question of concern. All procedures and selections would be still shrouded in mystery, promoting favoritism and nepotism. This system offers no clarity over who would be the ‘eminent personalities’ and lack of representation of the judiciary adds to its problem. Too much reliance on the executive deprives it of its independence. Another concern that has been regularly highlighted is that a minimum of 5 members has to agree to pass the name of a specific candidate. This number is more than both the simple and special majority as prescribed under our Constitution.
It can be rightly concluded that there is very thin line between having judicial accountability and undermining independence of judiciary. I firmly believe that National Judicial Appointment Commission could be considered one step ahead, but it fails to overcome the drawbacks of the collegium system and has infirmities of its own.
The decision of making the collegium proceedings public is surely a step towards transparency of this system. Apart from that, there should be an eligibility criteria along with a procedural manual to conduct the affairs of the collegium. Hence, Indian judiciary needs to restore its credibility and make the system more transparent to escape the tyranny of unelected influencing the judiciary.
“Democracy can’t be a tyranny of the unelected, says Jaitley”, Business Standard – https://www.business-standard.com/article/current-affairs/democracy-can-t-be-a-tyranny-of-the-unelected-says-jaitley-115101900027_1.html. Last Updated 19 Oct 2015
 S.P. Gupta Vs. Union of India 1982(2)SCR365
 Supreme Court Advocates on Records v. Union of India, 1993
 In re Special Reference 1 of 199
This article is edited by Rupreet Kaur Dhariwal.