The NJAC being quashed once cannot take an avatar in an ‘as it is’ form, but Parliament in its wisdom may alter the composition and bring a law on the subject again
Speaking in Parliament during the discussion of a bill on salaries for Supreme Court and high court judges, Union Law Minister Kiren Rijiju, while responding to a question by RSP MP NK Premachandran, recently said that there was a “growing voice” for the reintroduction of the National Judicial Appointments Commission (NJAC). He, however, clarified that there was no commitment by the government yet to reintroduce the NJAC and that at present, there were no problems with the appointment of judges under the existing Collegium system.
Let us visit the issue chronologically dividing the same into the pre-Constitution era and after the adoption of the Constitution.
I. Pre-Constitution Era
a) While drafting ‘judicial provisions’, the lengthiest Constitutional Assembly (CA) debates were on independence of courts, powers of Supreme Court and judicial review. The Sapru Committee in 1945 recommended that the justices of the Supreme Court and High Courts should be appointed by the head of state in ‘consultation’ with the Chief Justice of the Supreme Court and for High Court judges, the Chief Justice of that High Court and head of the concerned unit.
b) The task of framing draft provisions for establishing the Supreme Court began when an ad hoc committee of five members — BN Rao, Munshi, Mitter, Vardachariar and Ayyar — was formed. During the first three 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 2/3rd 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 the Supreme Court should require the 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 and 193 which were crafted for appointment of judges to Supreme Court and High Courts.
c) The first reaction to the Judicial Provisions came from the judges themselves. Chief Justice of the then Federal Court, HJ Kania wrote a letter to Nehru stressing the independence of the judiciary and particularly emphasised that when recommending to the President a person for the 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 an 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.
II. Adoption of the Constitution and afterwards
a) The final law for judicial appointments was crafted in Articles 124 (Supreme Court) and 217 (High Courts) for higher judiciary. For the subordinate judiciary, District Judges were to be appointed under Article 233 and other magistrates under Article 234.
b) The Supreme Court in 1950 was composed of Chief Justice HJ Kania and six other judges. Six out of these seven were part of the earlier Federal Court.
c) 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.
d) 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.
e) In 1971, the Government again baulked at appointing Justice JC Shah to succeed Justice M Hidayatullah, and in 1997 for Justice MM Punchhi as the successor of Justice JS Verma. However, the principle of seniority was honoured.
f) Nevertheless, the two dramatic supersessions done by the Indira Gandhi government (making Justice AN Ray as the Chief Justice of India by superseding Justices Shelat, Hegde and Grover and making Justice Beg as the Chief Justice by superseding Justice Khanna) 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.
g) In Samsher Singh [1974, 7 judges] Supreme Court held ‘consultation’ in Articles 217 and 124 as to confer primacy to the Chief Justice of India.
h) In Sankalchand Himmatlal Sheth [1977] it was held that ‘consultation’ under Article 222 means taking mandatory (but not binding) opinion of the Chief Justice in matters of transfer.
i) In SP Gupta v UOI [1981-1st Judges Case, 4:3 majority] it was written that the interpretation supplied to ‘consultation’ by Sankalchand stretched to Articles 124 and 217 and CJI has no primacy as all constitutional functionaries are equal. Appointment of judges was termed to be an executive function.
j) The 67th Constitution Amendment, 1990 was drafted to insert Part XIIIA in the Constitution to establish a ‘National Judicial Commission’. But it could not materialise.
k) Correctness of 1st Judges Case was doubted for the first time in Subhash Sharma v UOI [1991].
l) SCAORA v UOI [1993 – 2nd Judges Case, 7:2] overruled the 1st 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.
m) The Collegium system in a nutshell is as follows: 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 them to the Chief Justice. The recommendations are then submitted to the Chief Justice of India, Union Law Minister and 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 scrutinised 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 advise the government.
The Union law minister then submits all papers to the prime minister who in turn advises 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 the appointment of Supreme Court judges, in a similar procedure the Collegium comprises the Chief Justice of India and four senior-most judges who recommend names to the ministry. The Chief Justice of India is appointed completely on seniority.
n) In Re Special Reference [1998 – 3rd Judges Case] affirmed the 2nd Judges Case and imposed significant procedural constraints on the Chief Justice and vested wide powers in the Collegium.
o) In 2014, the Central government enacted the National Judicial Appointments Commission (NJAC) Act and also amended the Constitution vide the 99th Constitution Amendment Act, 2014. It was immediately challenged in a batch of petitions. In short, NJAC was intended to be the constitutional body comprising of the Chief Justice of India, two senior-most judges of the Supreme Court, Union Law Minister, Leader of Opposition and two eminent members chosen by a committee of CJI, Prime Minister and Leader of Lok Sabha and must have at least one woman/SC/ST/Minority/OBC representation. The commission was to replace the collegium to recommend names to the government.
p) In SCAORA v UOI (4th Judges Case) with a majority of 4:1, the Supreme Court declared the NJAC Act, 2014 and the 99th Constitution Amendment Act, 2014 unconstitutional.
In his dissenting judgement, Justice Chelameshwar strongly condemned the Collegium system. Interestingly at least 2 other judges in their separate opinions have also attested the fact that Collegium has its flaws. Justice Kurian Joseph wrote: “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.”
Justice Goel held, “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 levelled 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 the working of the existing system of appointment of judges can be the subject matter of separate consideration which is being proposed…” and “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.”
Former Chief Justice of US Supreme Court Charles Evans Hughes said “We are under a Constitution, but the Constitution is what the judges say it is.” Under the current legal position, the Collegium system prevails where judges alone recommend judges. NJAC being quashed once cannot take an avatar in an ‘as it is’ form, but Parliament in its wisdom may alter the composition and bring a law on the subject again. Hoping for the best, fingers crossed!
The author is an Advocate on Record, Supreme Court of India. Views expressed are personal.
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