The ruckus over appointments of Justice Dinesh Maheshwari, former Chief Justice of the Karnataka High Court and Justice Sanjiv Khanna, former judge of the Delhi High Court, to the Supreme Court makes me wonder, whether the NJAC – which was declared unconstitutional by the Supreme Court – would’ve been a better alternative to the present collegium system.
The Indian Constitution in Article 124 and Article 217 lays down a procedure for the appointment of judges of the Supreme Court and High Court. Article 124(2) says “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.” It clearly means that President should make the appointment in consultation with the Chief Justice, and not the other way around. Although, over the years, the Supreme Court through its three significant rulings – collectively known as the Three Judges Case – established a collegium system, in which the Chief Justice and a forum of four senior-most judges of the Supreme Court, have a final say in the recommendation of judges to highest courts, giving merely the space for objection, to the executive.
Since this system seemed unjust to the lawmakers of the nation, the Parliament without much NOES had passed the 99th Constitutional Amendment Act, in August 2014 – which was further ratified by 16 state legislatures – to incorporate an institution named National Judicial Appointment Commission; which sought to give the politicians and the civil society, apart from the judiciary, a say in the appointment process of the judges to the highest courts.
NJAC comprised of six members – the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons.’ These two eminent persons were to be appointed by a committee consisting of the CJI, the Prime Minister, and the Leader of Opposition in Lok Sabha. During the selection period, if any two members of the Commission had vetoed, the proposed judge’s name, would have been dropped. Evidently, this system by giving due diligence to the Principle of Separation of Powers – which is a basic structure of the Constitution – ensured fairness and transparency in the appointment process.
It should be known, that in the US, the appointment of judges is entirely a political process. In the UK, out of the 15 member Judicial Appointments Commission (JAC), only 5 are judges. And the Chairman of JAC is not a judge.
The central government, while defending the 99th Amendment in Supreme Court, had questioned the opaqueness through with the collegium works. And isn’t it pertinent to question a system framed by the custodian of the Indian Constitution, which is oblivious to checks and balances?
The Supreme Court in its defense, had emphasized that NJAC will dilute its decision making power by giving undue authority to the executive; which may further lead to politicization of the judiciary. This reason perhaps seemed convincing for the collegium system to exist, but with respect to the recent appointments, it now seems that this subject needs a further debate.
While President Kovind has already given his assent to Justice Dineshwar and Justice Khanna’s recommendation to the top court, an atmosphere of dissatisfaction has spread within the judicial fraternity. It’s because, the Collegium while making its recommendation considers seniority as a prime criteria. And in this case, Justice Khanna has been elevated by circumventing the seniority criteria. Justice Khanna stands at No.33 in the seniority list.
The Supreme Court on December 12 had already made its proposal to elevate Justice Pradeep Nandrajog, Chief Justice of Rajasthan High Court and Justice Rajendra Menon, Chief Justice of Delhi High Court, to the Supreme Court; but with a newly constituted Collegium in January, SC revised its recommendation.
This revision has been called “unjust and improper” by the Bar Council of India.“The suppression of several senior judges … will not be tolerated by the people,” the BCI said.
The Delhi Bar Council chief, has also said, “It is time to make some observations about the collegium system. Some of the sitting judges of the Supreme Court (who are now retired), and as per the Constitution bench judgment, the collegium system must be transparent, accountable and objective, to maintain credibility. It seems nothing has happened so far in this direction, so much so, even memorandum of procedure has not been finalised,” Mittal said.
Moreover, former CJI R. M. Lodha, a fierce critic of the NJAC system has said that the unprecedented January 12, 2018 press conference by four senior-most judges including Gogoi before he became the CJI has not served the purpose for which it was held and instead the concerns raised including the functioning of collegium for appointment of judges for higher judiciary have aggravated. “Looking at the overall reaction and perception, it would be better if the matter (of Khanna) is recalled and considered threadbare but this seems to be unlikely to me,” he said.
All such remarks raise serious concerns about the credibility of the collegium system. In a constitutional democracy, the Constitution is supreme. And it’s the responsibility of all institutions to adhere to its principles. The Supreme Court being the custodian of the Constitution is perhaps the most important institution, which plays an extensive role in making the democracy survive and foster. And if such an institution loses its credibility, then I am afraid – sooner or later – democracy will die.