Collegium Wapsi & the journey from Assembly debates to 4th Judges Case – A Sketch

“Let judges also remember that Solomon’s throne was supported by lions on both sides: Let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty”

Francis Bacon, ‘Of Judicature’

Background

In a path breaking judgment stretching to over 1000 pages, a Constitution Bench of the Supreme Court comprising of 5 judges (all of whom have penned words in sequence of seniority) in SCAORA v UOI (4^th Judges Case) with a majority of 4:1 declared National Judicial Appointments Commission (NJAC) Act, 2014 and the 99^th Constitution Amendment Act, 2014 unconstitutional. The 1+2 and 1+4 Collegiums also stand operative with this judgment for appointments of judges to High Courts and the Supreme Court. Senior most Kehar J has written 452 pages followed by the order of the Court signed by 5 judges. The judgment deals with 4 major aspects – Recusal, Reference, Review of 2^nd and 3^rd Judges and Constitutional Validity of NJAC. On the question raised by Fali S Nariman on his presence on bench, Kehar J refused to recuse. Reference to larger bench was declined, fresh review of 2^nd and 3^rd judges was denied and NJAC was declared unconstitutional as per the majority opinion. This is succeeded by the lone dissent by Chelameswar J (Pg 474-584, 121 paras), concurring majority opinion by Lokur J (Pg 585-893, 8+ 577 paras), short concurring view by Kurian J (Pg 894-924, No paras used) and lastly by Goel J till end. There are total 817 citations with overlaps in opinions. In a crux, NJAC was intended to be the constitutional body comprising of the Chief Justice of India, 2 senior most judges of the Supreme Court, Union Law Minister, Leader of opposition and 2 eminent members chosen by a committee of CJI, Prime Minister and Leader of Lok Sabha and must have atleast 1 woman/SC/ST/Minority/OBC representation. The commission was to replace the collegium to recommend names to the Government.

Pre Constitution Era

• While drafting ‘judicial provisions’, the lengthiest Constitutional Assembly (CA) debates were on independence of courts, powers of Supreme Court and judicial review. Sapru Committee in 1945 recommended that the justices of Supreme Court and High Courts should be appointed by the head of state in ‘consultation’ with the Chief Justice of Supreme Court & for High Court judges, the Chief Justice of that High Court and head of the concerned unit.

• The task of framing draft provisions for establishing the Supreme Court began when an ad hoc Committee of 5 members - B.N.Rao, Munshi, Mitter, Vardachariar & Ayyar was formed. During first 3 weeks of May, 1947 the ad hoc committee came to consonance that a Supreme Court shall be propounded and a panel of 11 members be constituted for appointments with 2/3^rd majority power. A ‘Judiciary Act’ was proposed which was to contain all relevant provisions concerning the courts instead of putting everything in the Constitution itself. It was recommended that the President should nominate puisne judges with the ‘concurrence’ of the Chief Justice and this nomination shall be subject to confirmation by a panel composed of High Court Chief Justices, members of both houses of central legislature and law officers of Union. The Union Constitution Committee (UCC) disagreed with this procedure of appointment and advocated the Sapru Committee report’s view. It also recommended that articles pertaining to Supreme Court should require consent of provinces before being amended. The Provincial Constitution Committee (PCC) supported their view. The Drafting Committee held regular meetings from 10-17 December, 1948 and framed nearly all Judicial Provisions including draft Articles 103 & 193 which were crafted for appointment of judges to Supreme Court and High Courts.

• The first reaction to the Judicial Provisions came from the judges themselves. Chief Justice of the then Federal Court, H.J.Kania wrote a letter to Nehru stressing on independence of judiciary and particularly emphasized that when recommending to the President a person for judgeship on a High Court, the Governor and the High Court Chief Justice should be in direct contact so that the provincial Home Ministry would not be an intermediary in the proceedings, else local politics may affect the selection of judges. Subsequently a ‘’Justice’s Meeting’ was conducted between all the Federal Court judges and Chief Justices of all High Courts. This meeting strongly recommended that the Chief Justice of the High Court, after consulting with the Governor should send his suggestions for appointment directly to the President thus excluding all provincial ministers from the selection process. On 24 May 1949, while discussing Draft Article 103, Ambedkar strongly defended the draft provision saying that it was the middle path between the English system of appointment by the Lord Chancellor and the American system of confirmation of judicial appointments by the senate. He also strongly contended that ‘consultation’ must be used instead of ‘concurrence’. The majority agreed and the draft provisions were adopted.

The final law for judicial appointments was crafted in Articles 124 (Supreme Court) and 217 (High Courts) for higher judiciary. For subordinate judiciary, District Judges were to be appointed Art 233 and other magistrates under Art 234.

• The Supreme Court in 1950 constituted of the Chief Justice H.J.Kania and 6 other judges. 6 out of these 7 were part of the earlier Federal Court.
• The appointment of judges to higher judiciary was done through the Presidential seal who acted under Article 74 on aid and advice of the Council of Ministers who mandatorily consulted the Chief Justice of India and any other judge if they deemed fit.
• When Chief Justice Kania retired at the age of 65, the six sitting judges insisted that the principle of seniority be used in selecting a successor. When the Government showed reluctance, the Supreme Court threatened to resign.
• In 1971, the Government again balked at appointing Justice J.C.Shah to succeed Hidayatullah J & In 1997 for Punchhi J as successor of J.S.Verma J. However the principle of seniority was honoured.
• Nevertheless, the two dramatic supersessions done by the Indira Gandhi Govt (Making A.N.Ray J as the Chief Justice of India by superseding Shelat, Hegde & Grover JJ and Making Beg J as the Chief Justice by superseding Khanna J) acted as a catalyst to force the thought process that a change is required in appointments for independence of judiciary which was affirmed to be basic structure of the Constitution.
• In Samsher Singh [1974, 7 judges] Supreme Court held ‘consultation’ in Articles 217 & 124 as to confer primacy to the Chief Justice of India.
• In Sankalchand Himmatlal Sheth [1977] it was held that ‘consultation’ under Art 222 means taking mandatory (but not binding) opinion of the Chief Justice in matters of transfer.
• In P.Gupta v UOI [1981-1^st Judges Case, 4:3 majority] it was written that the interpretation supplied to ‘consultation’ by Sankalchand stretched to Article 124 & 217 and CJI has no primacy as all constitutional functionaries are equal. Appointment of judges was termed to be an executive function.
• 67^th Constitution Amendment, 1990 was drafted to insert Part XIIIA in the Constitution to establish a ‘National Judicial Commission’. But it could not materialize.
• Correctness of 1^st Judges Case was doubted for the first time in Subhash Sharma v UOI [1991].
• SCAORA v UOI [1993 – 2^nd Judges Case, 7:2] overruled the 1^st Judges Case and held that the Chief Justice of India has primacy in judicial appointments by interpreting ‘consultation’ as ‘concurrence’. It also established the system of 1+2 and 1+4 Collegium system for appointments.
• In Re Special Reference [1998 – 3^rd Judges Case] affirmed the 2^nd Judges Case and imposed significant procedural constraints on the Chief Justice and vested wide powers in the Collegium.

Collegium: The procedure in a nutshell

For appointment of High Court judges, the Chief Justice of High Court after consulting other senior judges of that High Court sends a list of names to the Chief Minister who can also suggest a few names and send to the Chief Justice. The recommendations are then submitted to the Chief Justice of India, Union Law Minister & the Governor of the State. The Governor will send the entire bundle to the Union Law Minister who will consider the names. The proposed names are then scrutinized by the Intelligence Bureau through the Ministry of Home Affairs. The names with all sets of papers are then submitted to the Chief Justice of India who forms a Collegium with 2 senior most judges and consult other colleagues well versed with that High Court to advice the Government. The Union Law Minister then submits all papers to the Prime Minister who in turn advices the President to take the final call. The ministry or the President can return the file for reconsideration on certain grounds but if the Collegium recommends again, the President is bound to sign. For appointment of Supreme Court judges, in a similar procedure the Collegium comprises of the Chief Justice of India and 4 senior most judges who recommend names to the ministry. The Chief Justice of India is appointed completely on seniority.

The bench has posted the matter on Nov. 3 at Pg.454 & 1042 for further hearing on the matter as to discuss suggestions to improve the present system of appointments. Interestingly, in his dissent Chelameshwar J strongly condemned the Collegium system, but atleast 2 other judges in their separate opinions have also attested the fact that Collegium has its flaws. Kurian J at Pg 924 – “Therefore, the Collegium system needs to be improved requiring a ‘glasnost’ and a ‘perestroika’, and hence the case needs to be heard further in this regard.” Goel J at Pg 990-991 – “Even a good system may have shortcomings in its working on account of individual failures. It may be mentioned that criticism of working may be leveled against working of every organ of the Constitution including the Executive and the Legislature and while all efforts must be continuously made to bring about improvement in every sphere, the basic scheme set up by the Constitution cannot be given a go bye on that ground……… The improvement in working of existing system of appointment of judges can be the subject matter of separate consideration which is being proposed…..” and at Pg 1021 – “Needless to say that criticism can be against the working of any system but the systems can be changed only as per the Constitution. Efforts to improve all systems have to be continuously made.” 

Perhaps, ours is the only Supreme Court which time and again proudly declares I am Supreme. It reminds me of the famous lines – “I believe that the brain is the smartest organ in human body, but then I remind myself who actually is telling me this.” In this lies a very big challenge to the Supreme Court. The hearing on Nov 3 will mark its day in history if a change is admitted.

To conclude, I must quote the final lines of Bacon’s essay I began this paper with –

“Let not judges also be so ignorant of their own right, as to think there is not left to them, as a principal part of their office, a wise use and application of laws. For they may remember what the Apostle saith of a greater law than theirs – Nos Scimus quia lex bona est, modo quis ea utatur legitime. (But we know that the law is good, if a man uses it lawfully)”

Namit Saxena is a lawyer and can be reached at namitsaxena2007@gmail.com.