From Collegium to NJAC and beyond

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From Collegium to NJAC and beyond

After the Keshavananda Bharati and the A.D.M. Jabalpur Cases, High Courts and the Supreme Court of India came under immense pressure. The supersession of three senior most Supreme Court judges and promotion of judges of her choice in various High Courts and the Supreme Court of India was only the beginning; Mrs. Indira Gandhi resorted to punishing the judges whom she considered disobedient and inconvenient. In the first step she resorted to the forced transfer of judges from one High Court to another and that too from one corner of the country to another. During the Emergency, on the pretext of achieving national integration, 16 High Court judges were transferred just in one go. These were the judges from nine High Courts who had previously given the judgments contrary to the Supreme Court in A.D.M Jabalpur Case. This mass transfer took place in 1976. These judges belonged to nine High Courts which had upheld the Fundamental Rights of persons detained during the Emergency. These judges were transferred for one corner of the country to another from their original high courts, without their consent and overriding their objections.1 [1] Sixteen High Court judges, who were transferred, were not guilty of any misbehavior or wrong-doing. On the contrary they had performed their constitutional duties with utmost sincerity, and had only delivered judgments which were not to the liking of the Government of the day. In his characteristic style, H.M. Seervai writes, “The sixteen judges were transferred not for doing anything wrong but for doing right to all manners of people according to the Constitution and the laws.”2 [2] These judges had ruled that the detention of leaders like Morarji Desai, Atal Bihari Vajpayee, L.K. Advani, Madhu Dandavate, Sham Nandan Mishra and many others under the MISA during the emergency was illegal. In many cases, judges, initially appointed for two years’ probation before their confirmation in High Courts, were not continued because their judgments were not seen in favorable light by the Government. The intent of the Government was also reflected in its decision to prohibit all newspapers from publishing the names of the transferred judges or any discussion over it. A further threat to the judges was indicated by the Government by deliberately leaking the names of 40 High Court judges as being under consideration for transfer.3 [3] This was the most blatant attempt to threaten and control the higher judiciary. During the emergency a large number of Additional Judges in various High Courts were denied routine extensions or confirmations. These judges were mostly those who had ruled against the unlawful detention of ordinary citizens during the Emergency. The list included Mr. R.N. Agrawal, Additional Judge of Delhi High Court, who had ordered the release of Kuldip Nayar from preventive detention. In 1980, when Congress returned to power, five High Court Chief Justices were retired without being confirmed. Additional Judges were being given extensions or given appointments only at the last moments and were made to fill in several very demeaning undertakings. The slur and insult was so much manifest in this act of transfer that two of the judges died of shock and heart attacks. The Government was criticized for this act but of no avail. A very suave and polished Justice M.C. Chagla, Mrs. Gandhi’s own former Education and Foreign Minister, was to describe this act of Mrs. Gandhi as, “The most brutal and inglorious period of our history.”4 He further said that all this could happen just because Chief Justice A.N. Ray was very weak and cowardice.5 [4] For everything, the Chief Justice of India (CJI) waited for directions from Mrs. Gandhi or her colleagues. Dealing with the transfer case during the Emergency and the Government’s pretext that this was a step towards innovative method of national integration, Justice Y.V. Chandrachud observed (indeed only after the end of Emergency and the defeat of Mrs. Gandhi) that, “There are numerous other ways of achieving national integration more effectively than by transferring High Court Judges from one High Court to another… Considering the great inconvenience, hardship and possibly a slur which a transfer from one High Court to another involves, the better view would be to leave the Judges untouched and take other measures to achieve that purpose. If at all, on mature and objective appraisal of the situation, it is still felt that there should be a fair sprinkling in the High Court judiciary of persons belonging to other States, that object can be more easily and effectively attained by making appointments of outsiders initially.”6 [5] The Government left no stones unturned to malign and demoralize the judges. A cabinet Minister of the Mrs. Gandhi’s Government had bracketed the entire judiciary with the opposition parties just because some judges would not accept and do what the Congress Government wanted. In the Lok Sabha, Law and Justice Minister H.R. Gokhale (who himself was a judge in Bombay High Court before joining politics), and other leaders like K.P. Unnikrishnan, Chandrajeet Yadav, P. Kumaramangalam and many others started talking about a ‘committed’ judiciary. Mr. H.R. Gokhale went as far as issuing a letter to each judge through the State Chief Ministers that, “The Government of India thinks very highly of those ‘value-packed’ judges who never rule against the Government, and will consider favorably their promotion to the Supreme Court.”7 [6]

Emergence of the Collegiums System

As we have already seen, the appointments in the High Courts and Supreme Court have always been an issue between the judiciary and executive right from the time of Jawaharlal Nehru, not based on merit but on personal likes and dislikes. But what happened during Mrs. Indira Gandhi’s rule, and especially during the Emergency, must have been a matter of great concern among the judges who valued and treasured the independence of the judiciary. Conduct of executives during the Emergency provided further impetus towards doing something to insulate higher judiciary form excessive interference of legislatures and the executives. The roots of the collegium system is traced to the First Judges case 8 but it got a concrete shape from the Second and Third Judges Cases which were the Supreme Court Advocates on Account Case (judgment on 06.10.1993)9 [7]. The Collegiums came into existence immediately after the judgment in the Supreme Court Advocates on Account Case of 1993) 11. [8] This judgment took the position that opinion of the CJI in agreement with two other senior most judges was to be read as concurrence. This judgment fundamentally altered the nature and process of appointments envisaged in Article 124(2) and Article 217(1) of the Constitution. In the entire Constitution there is no provision of Collegium for the appointment of High Courts and Supreme Court judges. In a way this judgement rewrote these Articles dealing with the appointments of High Courts and Supreme Court judges without deleting or subtracting these from the Constitution. In the Second Judges Case, it was further held that in the event of disagreement between the constitutional functionaries involved in appointments of judges, the opinion of CJI will have primacy. In other words, the CJI usurped the constitutional powers of the President of India. In the beginning, the CJI consulted two of his senior most judges but it was expanded to four senior most judges through the Third Judges Case. Eventually, through the Third Judges Case, the Supreme Court laid down different sizes of Collegiums depending on whether it was for an appointment to the Supreme Court or the High Courts, or transfer of judges from one Court to another. Since the Collegiums came into existence all appointments to the Supreme Court and High Courts have been done by it. However, discordant voices have been raised regarding the functioning of the Collegium. It has also come into question by the judges themselves. Not only there are no criteria or parameters that are followed for the appointments of judges but also no records of the Collegium meetings and details of judges who are appointed are kept. Neither are detailed or even brief procedures have been evolved for arriving at the decisions.

In nutshell, the main points of dissatisfactions can be summarized as follows:-

1. There are no parameters and no frameworks for the selection of High Court judges or elevation to the Supreme Court, and no minutes are kept in such matters; 2. Everything is kept secret and no one knows anything beyond the Collegiums members; 3. Nepotism reigns in the Collegium’s decisions; 4. Time and again, Supreme Court judges, even some Chief Justices, have voiced that things were not well in the Collegium system and urgent reforms were needed.

In absence of any working procedure or framework everything has come down to personal likes and dislikes and indeed tough bargains are carried on not only among the Collegium members but also between the Collegium and the executives. Justice Ruma Paul, a retired Supreme Court judge and herself member of the Collegium for some time, says, “The process by which a judge is appointed to the High Court or elevated to the Supreme Court is one of the best kept secrets in the country…. The ‘mystique’ of the process, the small pool from which the selections were made and the ‘secrecy and confidentiality’ ensured that the process may, on occasions, make wrong appointments and, lend itself to nepotism.”12 Justice Chelameswar had been so frustrated that several times he had refused to participate in the Collegium meetings and wrote very critical letter about the whole process. That the Collegium does not follow any set criteria is reflected in the decisions it has made in elevating High Court judges to Supreme Court. Some of the most renowned judges and the senior most among all the High Courts’ combined judges’ seniority list could not make it to the Supreme Court. But at the same time, many rather junior judges made it to the top court. When Ruma Paul was elevated to Supreme Court she was at No. 70 in order of High Courts judges’ seniority; Altmas Kabir was at No. 13; Amitav Roy at No. 35; V.N. Krishna at No. 33; S.H. Variava at No. 38 and so on. K.M. Joseph, recommended (and now elevated) for the Supreme Court was No. 42 in the overall seniority and No. 11 among the Chief Justices. This are just few samples. Similarly, since the Collegium system came in, some judges could make it to Supreme Court after serving 15 years in High Court (JJ Anand, Kirpal, Deepak Mishra); 14 years (JJ Bharucha, Lodha, Thakur); 13 years (Justice Khare, Sabbarwal, Dattu); whereas a few were lucky to climb up to the Supreme Court just after nine years in the High Court. Justice V.R. Krishna Ayyar was an exception to have moved to Supreme Court just after three years in High Court. Not necessarily the selection and recommendation of judges have gone wrong all the time but the examples of justices C.S. Karnan, P.D. Dinakaran, Saumitra Sen and even CJI K.G. Balakrishnan show how sometimes things can go horribly wrong. Nepotism in the appointments of judges is another thing that has been talked about openly. There are, or have been, six judges who are the sons of former Supreme Court judges: P.N. Bhagwati, S.M. Fazal Ali, B.P. Singh, N. Santosh Hegde, B.N. Agrawal and D.Y Chandrachud. As K.M. Joseph makes it, the tally has gone up. Similarly, High Courts are also adorned by large number of sons and grandsons of former Supreme and High Court - for example, A.K. Mukharjee (s/o B.K. Mukharjee), D.K. Kapur (s/o J.L. Kapur), D.K. Mahajan (s/o of C.K. Mahajan, gs/o M.C. Mahajan), B.P. Singh and R.P. Singh (s/o and gs/o B.P. Sinha), A.N. Ray (s/o Ajit Nath Ray), Anil Dev Singh (s/o Jasvant Singh), R.P. Mishra (s/o R.B. Mishra), K.M. Joseph (s/o K.K. Mathew) and so on. Besides, there are a large number of judges whose family members have deep connections with the executives as well as judiciary who made, and continue to make, it to High Courts or Supreme Court. A sitting judge recently said that, “Competition to reach to Supreme Court is so tough that without a godfather it is impossible.”13 [9] Fali S. Nariman laments: “If there is one important case decided by the Supreme Court of India in which I appeared and won, and which I have lived to regret is the decision that goes by the title -- Supreme Court Advocate-on-Record Association vs. Union of India. (1993, 4 SSC441: AIR1994SC 268).” 14 [10] Nariman’s pain can be appreciated by the fact that the title of Chapter 16 discussing this episode is titled, “A Case I won – But Which I Would Prefer to Have Lost”. After narrating various omissions and commissions since the Collegium system began, Nariman writes: “All this will tell you why I have been so greatly disappointed after winning the Second Judges case. Today I can only express my extreme anguish at the current state of ground realities in the matters of appointment of judges.” 15 [11]

What is a Collegium System?

• A forum which decides on appointments and transfers of judges • Comprises of the Chief Justice of India and the four senior-most judges of the Supreme Court • It is born from ‘Three judges cases’ which gave primacy to the Chief Justice of India’s call on appointments or transfers; the President merely approves the CJI’s choice. • Judiciary gets greater say than the executive on the appointments or transfers of judges. • The system was evolved through Supreme Court judgments in the Three Judges Cases dated October 28, 1998

What is the NJAC?

• The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges. • It was established by amending the Constitution (99th Amendment) passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14, 2014. • The Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. • Both Bills were ratified by 16 state legislatures and the President gave his assent on December 31, 2014. • The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015.

Composition of NJAC

• It consists of six people – the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. • These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of Opposition in the Lok Sabha, and are not eligible for re-nomination.

What was the Contention?

• The contention was on two ‘eminent persons’ in the NJAC panel. • One of the eminent persons nominated should be from Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women. • The two eminent persons to be nominated for a period of three years and no re-nomination allowed. • Nomination of two eminent persons to be finalized by a panel comprising the Prime Minister, Chief Justice of India and the Leader of Opposition. • According to Section 5 of the NJAC Act, if two members disagree with the recommendation, the Commission can’t make that recommendation. • The petitioners say, the two nominated members can veto a decision of the NJAC and thus the government will control the NJAC’s decisions. Retired Supreme Court judge Madan Lokur has penned an article accusing the government of bringing back the quashed National Judicial Appointments Commission without having to pass a legislation. In his defense he had cited several recent instances of the collegium not getting its way on various appointments and transfers. He has also rapped the collegium for reversing a “signed and sealed(but not delivered) resolution on January 11 and thus setting a precedent.

The quashing of the NJAC Act was the first, and perhaps lone, setback that the Supreme Court has inflicted on the government since 2014. On most other issues of any significance the Supreme Court has affirmed government decisions. However, as later events have proven the government has smartly recovered from the temporary setback of SC ruling the NJAC Act as unconstitutional. The authority given to the Centre in the judgment to finalize the Memorandum of Procedure has led to irreconcilable differences. Surprisingly, none of the recent Chief Justices have shown any urgency to finalize the Mop which seeks to bring some transparency to the functioning of the collegium.

While the government is certainly entitled a view on judges appointment, the collegium system as practiced earlier gives it no leeway to reject a collegium recommendation. Yet the government has succeeded in having its way on many recommendations. It is the SC and HC collegiums which have to answer Justice Lokur’s view that an informal NJAC has appropriated its role in judicial appointments. Justice Lokur ends his article asking others, presumably judges –sitting and retired—to speak up.

What is good about the collegium system?

A simplistic understanding might make the collegium system look rather opaque, especially because only judiciary has the power to select future judges. However, this is also a way to make judiciary independent of politics. Having been kept outside of the legislature and executive, the system is believed to keep selection of future judges free from outside interference. It upholds the seniority of candidates and is supposed to abide by the principles of separation of powers in the Constitution. With the government’s involvement, many fear the judiciary might have to compromise on its independence.

What are the arguments against collegium?

According to a PTI report, the Centre has termed the system of judges appointing judges “illegal”.

A First Post report says the Collegium system was not proposed by Indian Constitution; it has evolved to what it is today through two Supreme Court judgments. Before the collegium system came into being, the process for selection of judges was done as mentioned in Constitution.

Article 124 of the Constitution says: “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 and shall hold office until he attains the age of 65 years: Provided that in the case of appointment of a judge other than the chief Justice, the chief Justice of India shall always be consulted.”

Article 217 says: “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….”.

That is, according to the Constitution, the executive is empowered to appoint judges in consultation with the judiciary. But in 1993, the Supreme Court created a collegium and empowered judges to appoint judges; the government could raise objections if it wanted, but the collegium could still go ahead, the report says.

“20 state assemblies had ratified it (NJAC) the principal author of the 1993 Supreme Court judgment, which led to the collegium system, (late) Justice J S Verma had also suggested a serious rethink on the collegium system and so had Justice V R Krishna Iyer,” a Times of India report on Friday quoted Telecom Minister Ravi Shankar Prasad as saying.

What is good about NJAC?

In NJAC, there are three members outside of the judiciary and three members from judiciary. Also, the government and the Opposition could nominate members to the council which made the council diverse. In NJAC, members have veto power. If two members veto a nomination or decision, the matter is dropped, says the FirstPost report.

Image via Shutterstock Image via Shutterstock IN the petition filed by advocate Prashant Bhushan and the Centre for Public Interest Litigation against the NJAC Act, it was said that the collegium system must be scrapped as well, and a full-time judicial appointments commission, independent of the government and the judiciary, should be constituted to select judges. This body could work in a transparent and scientific manner by laying down the criteria for selection, advertising of vacancies and evaluation of applicants/nominees on a discernable basis on the criteria laid down. Arguments against NJAC

The National Judicial Appointments Commission Act was “against the basic features of our Constitution”, though the collegium system is not entirely flawless, a Zee News report said, quoting top lawyers and legal experts. The Constitutional validity of NJAC was challenged by several bodies and groups on the ground that it might dilute the independence of the judiciary by giving the government and the political class a substantial say in the process of appointments, said Prashant Bhushan in an article for Live law.

One of the main concerns regarding NJAC was the involvement of government in the council. The main ground on which the Supreme Court made its judgment was that by giving the government a substantial say in the appointment of judges, NJAC might compromise the independence of the judiciary.


References

  1. 1Granuville Austine, 1999, Working A Democratic Constitution, p.344.
  2. H.M. Seervai, 1998, Constitutional Law of India, p. 2802.
  3. 3.Ibid. p. 2803.
  4. 5.See forward to M.C. Chagla, Roses in December, (Autobiography), Bombay.
  5. 6.Y.V. Chandrachud, in Union of India v. Sankalchand Himatlal Seth and others. Date of Judgment 19.09.1977. This is now post emergency period; Mrs. Gandhi defeated and gone. We may recall his FICCI Speech on 22 April, 1978) in which he said, “I regret that I did not have the courage to lay down my office and tell the people, Well, this is the law.” (Hindustan Times, 23 April, 1978).
  6. 7.See Granuville Austine, 1999, Working A Democratic Constitution, p.345.
  7. Supreme Court Advocates on Account vs. Union of India (Also known as Second Judges Case).1993(4) SCC 441; AIR 1994 SC 268. and Government of India’s Petition for the Reconsideration of the Judgment of 6 October, 199310 respectively
  8. For the details of collegium system one may read First and Second judges cases. In fact a detail suggestion was made in Justice Bhagawati’s judgment in the First Judges case, of course, without diluting the powers of the President of India in the matter.
  9. Times of India, 15 April, 1918. New Delhi
  10. Fali S. Nariman, 2010, Before Memory fades: An Autobiography, Hay House, New Delhi, (Eighteenth reprint 2018). p. 389.
  11. Ibid. pp.404-05.