7 PM | Collegium controversy:| 18 January, 2019

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Context:

Recently SC collegium recommended names of two judges for appointment allegedly in an arbitrary manner.

SC recommended names of Justice Dinesh Maheshwari and Justice Sanjiv Khanna to the governmentfor elevation to the apex court by superseding judges senior to them. The recommendation raises several doubts about the decision of collegium:

• Two judges,Rajasthan HC Chief Justice Pradeep Nandrajog and Delhi HC Chief Justice Rajendra Menon,who neither lack integrity nor judicial competence, have been dropped by collegium now arbitrarily, thoughthey were recommended by collegium in December, 2018.
• The official reason given behind this change of decision is that “additional material” has surfaced but it is not clear what the material is and how it changed the decision.
• Justice Maheshwari, whose name is in the list, was dropped by the collegium for consideration in October 2018.
• Erstwhile CJI T.S.Thakurallegedly refused to recommend the name of Justice Sanjay Kishan Kaul to SC because of personal vendetta.
• For the first time, it was justice A N Ray, who was promoted in 1973 by the executive, by superseding three senior judges. But it was a rare practice then.

Collegium system:

• Collegium system in India, also referred to as “Judges- selecting- Judges”, is the system by which the judges are appointed and transferred by the judges only.
• The system has evolved through the judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution.
• The SC collegium is headed by the Chief Justice of India and comprises four other senior most judges of SC. A High Court collegium is led by its Chief Justice and four other senior most judges of that court.
• Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium.
• The government is bound to appoint a person as a Supreme Court judge if the collegium reiterates its recommendation.

Evolution of the collegium system:

• S. P. Gupta v. Union of India – 198 (also known as the Judges’ Transfer case): It laid down that recommendation of CJI is not binding on the government. The Constitution Bench also held that the term “consultation” used in Articles 124 and 217 was not “concurrence” i.e. although the President will consult these functionaries, his decision was not bound to be in concurrence with all of them.
• Supreme Court Advocates-on Record Association vs Union of India –First Judges’ Case, 1993: a nine-judge Constitution Bench overruled the decision in S P Gupta.
  • It devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
  • The verdict accorded primacy to the CJI in matters of appointment and transfers while also ruling that the the term “consultation” would not diminish the primary role of the CJI in judicial appointments.
  • The recommendation should be made by the CJI in consultation with his two senior most colleagues, and that such recommendation should normally be given effect to by the executive.
• Second Judges’ Case, 1998: In 1998, President issued a Presidential Reference to the Supreme Court over the meaning of the term “consultation”.
  • The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”.
  • In response, the Supreme Court laid down guidelines for the functioning of the collegium for appointments and transfers.
  • It laid down that the recommendation should be made by the CJI and his four senior most colleagues, instead of two.
  • It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government.

National Judicial Accountability Commission:

• Central government passes the NJAC Act through a constitutional amendment in 2015 to replace the collegium system of appointment of higher judiciary.
• The NJAC consisted of three judges of SC, central law minister and two civil society experts.
• A person would not be recommended by NJAC if any two of its members did not agree to such recommendation, thus making appointment process more broad-based.
• But SC struck down the NJAC Act, terming it unconstitutional as it diluted the independence of judiciary and asked the government to draft a new Memorandum of Procedure. 

Criticisms of the collegium:

• Unconstitutional and autocratic: ‘Collegium’ is nowhere mentioned in the Constitution and has been evolved by the judiciary itself for retaining the power to select judges by itself.
• Undemocratic: Selection of judges by collegium is undemocratic asjudges are not elected by the people and are not accountable to the people or to anyone else.
• Non-transparency and opaque: No official procedure for selection,lack of a written manual for functioning, selective publication of records of meetings and no eligibility criteria of judges bring opacity in collegium’s functioning.
• Promotes nepotism:Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles.
• Inefficient: Collegium has not been able to keep a check on the rising cases of vacancies of judges and cases in courts.
• Ignores SC’s own guidelines:Supersession is inconsistent with the view of the Supreme Court in the Second Judge’s case, 1993, where it laid that:
  • Seniority amongst Judges in their High Courts and on all India basis is significant and should be given due weight while making appointments from amongst High Court Judges to the Supreme Court.
  • Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court, but now it has become a practice being followed without any ‘cogent reasons’.
• Against established conventions: The convention of ‘seniority’ has long been held as the procedure for appointments but ‘supersession’ ignores and abdicates this convention, creating space for subjectivity and individual bias in appointments.

After striking down the NJAC, the court did nothing to amend the NJAC Act or add safeguards to it that would have made it constitutionally valid. Instead the court reverted to the old Collegium-based appointments mechanism.

The subjectivity and the inconsistency of the collegium system mandates a relook at the process of appointment of judges:

• The NJAC should be amended to ensure that the judiciary retains independence in its decisions and re-introduced in some form or the other.
• A written manual should be released by the Supreme Court which should be followed during appointments and records of all meeting should be in public domain in toto to ensure transparency and rule based process.

Source : https://www.thehindu.com/opinion/editorial/collegium-controversy/article26018425.ece