One way in which a nation’s judiciary can be successful in its functioning is when the courts become impartial while discharging their duties. This, of course, means that a certain level of independence and autonomy needs to be given to the judges. The separation of the legislative, the executive and the judicial powers forms the foundation of a democracy. A clear demarcation of the three spheres was done to prevent anyone one sphere from overstepping its jurisdiction. In case of the judiciary, this independence is also to prevent intervention of all sorts of political and economic influences.
A secure tenure, the independent appointment of the judges, provision for contempt of court, fixed salaries (except in case of financial emergency) are measures for ensuring judicial independence. The most important and heavily contested measure is the appointment of the judges to the Supreme Court and the High Court. According to the convention, a collegium System is followed while appointing judges. The Collegium consists of the Chief Justice of India, four senior-most judges of the Supreme Court, while in case of High Courts, it has the CJI, Chief Justice of the respective High Court and three of its senior-most judges who are part of it. The collegium advises the President to appoint people whom they think are fit to be the judges of the respective courts. The government has no say in this regard and it comes into the picture only after the recommendation has been made.
The system was established after the famous Three Judge Cases. Over the 3 cases, the SC evolved the principle that no other wing of the state shall have a say in the appointment of the judges. The first case ‘S.P Gupta Vs. Union of India’ failed to challenge the executive primacy as the verdict read that the opinion of the CJI is merely ‘consultative” and is not binding. The court, therefore, gave a very literal interpretation to the article 124 and 217 of the Constitution. The matter was again considered by the nine-judge bench in ‘Supreme Court Advocates-on-Record Association vs. Union of India’, popularly known as the Second Judges Case. The majority of the judges in the nine-judge bench gave up the literal interpretation of the constitution and adopted a broader view of the word ‘consultation’. Constitutional philosophy was evolved—“in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight as he is best suited to know the worth of the appointee”. The executive element in the appointment process was reduced to a minimum and the political influence was eliminated. In Re-Presidential Reference case, known as the Third Judges Case, it was stated that the opinion of the CJI would be formed on the basis of the written recommendations made to him by the collegium. The system was to serve as a check against arbitrary action or bias on the part of the CJI.
Therefore, the question that is raised is, ‘Quiscustodietipsoscustodes’ or ‘who watches the watchmen’. The collegium has been riddled with allegations and its fairness has been questioned. Former members of the collegium have revealed the preferential treatment of judges in matters of elevation. No elevation of the former chief justice of Delhi High Court, Justice A. P. Shah and former Chief Justice of Madhya Pradesh High Court, Justice U L Bhatt are often cited as instances of prejudice and unfairness.
The government’s alternative to the collegium system was a National Judicial Appointments Commission. The 99th Amendment in 2014 provided for constituting the NJAC, which would be responsible for the appointment, transfer and probing into the allegation of the judges. In 2015, the Supreme Court struck down the 99th Amendment and consequently the NJAC, terming it “unconstitutional”. The major bone of contention was the inclusion of two eminent people in the commission. The appointment of these eminent people was largely left to political forces. The bench held the opinion that the inclusion of laymen in the system of judicial appointments ‘cannot work’.
One can ask, what alternative does one have at this point in time? Well, nothing. The fact remains that while there is dissatisfaction with the opaque and inaccessible nature of the workings of the collegium, it is the best we have with us for now. The adverse effects of the Executive’s influence are clearly visible in the years before the Second Judges Case. Judges were suppressed for giving dissenting verdicts and not pleasing the government. The rules of seniority and merit were ditched. Justices Jaishanker Manilal Shelat, K S Hegde, A N Grover and H R Khanna were all affected as their judgments did not go well with the people in power. The infamous Emergency period has been marred by arbitrary transfer of Judges.
Given this kind of history, it would be disastrous to put power back into the hands of the executive. In a trade-off between the harms of involving the political structures in judicial processes and the harms incurred by letting the collegium work in an opaque manner, the country should settle for the latter. While Judges resorting to bias is a visible harm, it is not big enough to give up the judicial independence which is the core constituent of our constitution. It is important to remember that the judiciary is the only statutory organization that has the power to try all people in front of it equally. It takes into account all citizens irrespective of their economic and social standing. The present government views dissension among judicial ranks as a chance to intrude. It presents itself as an opening for the regime to usurp power. Foregoing the independence of the judiciary would mean handing a free pass to the executive to indulge in devious activities and for that very reason, the collegium must stay.
Picture Courtesy- DNA India