Pradeep Gupta
Rule of law is the bedrock of a democracy for which an independent judiciary that is not swayed by the blowing political winds is a pre-requisite. Merit based appointment of Judges in a transparent manner is the key element for making Judiciary independent of Executive and Legislature. The collegium system of making appointments to the higher judiciary is in the news lately. It has evolved thorough significant judgements of the Supreme Court known as the First, Second and Third Judges Cases.
In the First Judges case titled SP Gupta Vs Union of India, a seven Judge SC Bench in 1981 gave the Executive the final say in appointment of Judges. Interpreting Articles 124 (2) and 217 (1) of the Constitution which deal with appointment of Judges to the Supreme and High Courts, the Apex Court held that the Government can disagree with the Chief Justice of India (CJI) giving cogent reasons. In the Second Judges case in 1993 a nine Judge Supreme Court Bench re-examined the correctness of 1981 verdict and reversed it. It held that ‘Consultation’ with CJI before appointment of Judges as indicated in Art 124(2) would effectively mean ‘concurrence’ of the CJI. It further held that a collegium comprising of CJI and two senior most judges would make recommendations that would be binding on the government. In the Third Judges case in 1998 a reference was made by the then President of India, K.R.Narayanan under Article 143 seeking Supreme Court’s opinion in its advisory jurisdiction whether ‘consultation’ in Art 124(2) is to be construed as ‘approval’ of the CJI. While reiterating its decision of 1993 the SC increased the strength of the collegium from three to five judges. The exposition of law as laid down in the Second Judges case was reaffirmed in the Third Judges case.
In the year 2014, the Parliament in pursuance of the Constitution (99th Amendment) Act, followed by the National Judicial Appointments Commission (NJAC) Act constituted a Commission for selection and appointment as also transfer of Judges of Higher judiciary, which replaced the prevailing system for appointment of Judges and Chief Justices of High Courts and Supreme Court. These enactments were assailed before a Constitution Bench headed by CJI, Justice Khehar. The apex Court while rejecting the prayer for reference to a larger Bench and for reconsideration of the Second and Third Judges case, vide its Judgment dated 16 October, 2015 declared the Constitution (Ninety-ninth Amendment) Act and the National Judicial Appointment Act, 2014 unconstitutional and void and restored the system of appointments prevalent previously. In short, the Court held that primacy has to be given to the recommendations of CJI headed collegium while making appointments to the higher judiciary.
The system has more or less worked smoothly. But there does not seem to be complete reconciliation with the 2015 judgement. Concerns have been voiced at the delay in acting upon the recommendations of the collegium. Sometimes recommendations are returned even after reiteration by the collegium. This back and forth is detrimental particularly when there is mounting pendency of Court Cases. The collegium system is being variously described as not accountable, alien and opaque. Even portraying 2015 SC judgment as a severe comprise of parliamentary sovereignty and disregard of the mandate of the people. All this is said when no review petition or a curative review has been filed against the impugned SC Judgment. And now even pendency of cases is being attributed to current system of appointing judges and vacations availed by the Judiciary. We should not grudge the Judges their well earned break from work. But there is a case for staggering vacations (akin to practice followed in case of Doctors in medical institutions) so that the Courts remain functional throughout the year.
The courts like the hospitals cannot remain closed. In this context the proposal to appoint retired judges to fill vacancies in High Courts on adhoc basis also merits consideration to reduce pendency. It has also been suggested that the SC should not entertain bail applications and PILs to avoid extra burden. It has to be kept in mind that these seemingly small and routine matters often relate to right to life and personal liberty and rights of voiceless marginalized groups. The apex Court is constitutionally duty bound to hear to such matters.
The law laid down by Supreme Court, unless altered, is now law of the land. Harking back on the issue will serve no purpose. But that does not mean that the collegium system needs no reform. It needs to be improved to make it more transparent and open. All reforms have to be considered in the spirit of mutual trust, understanding and for betterment and not with the objective of establishing dominance. Judiciary is the centerpiece of constitutional balance and must be able to discharge its functions with complete independence.
(The author is a former Civil Servant)
Follow our WhatsApp channel
