The Indian Judiciary is one of the three pillars of democracy, demarcated from the Legislature and Executive to provide a clear separation of powers. The Judiciary is often regarded as the key to ensuring the civil and political liberties of the people, by being a mechanism through which citizens can fight for their rights as laid down by the law of the land, the Constitution. One of the tenets of a truly democratic society is an independent judiciary. Enshrined within international humanitarian law and subsequently written into the legal frameworks of numerous nations, the ability of the judiciary to function without being encroached upon by the other two branches of government is considered essential to protecting the basic human rights of the people.
In 2015, the Supreme Court bench struck down (4 assenting: 1 dissenting) the National Judicial Appointments Commission (NJAC) Act, citing that, “The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it insulated and independent, from the other organs of governance”[1]. The pre-existing collegium system of making judicial appointments was restored following this judgement.
The decision was met with widespread furore by members of Parliament, the executive and even some members of the legal community. The idea of an Act that was passed by both the Houses of Parliament with near unanimity, being declared void by the Judiciary was seen as a misuse of power by some. But what exactly is the collegium system that the Supreme Court decided to uphold?
What is the Collegium System?
The collegium system works on the principle of decisions on judicial appointments and transfers being made by a bench consisting of the Chief Justice of India (CJI) and the four senior most judges of the Supreme Court. A similar structure exists at the High Court level, in the form of the High Court collegium. The working of a collegium system is not prescribed directly by the Constitution but has rather evolved organically through a series of Supreme Court judgements, colloquially known as the Three Judges’ Cases.
The collegium makes recommendations for appointing and transferring judges, with recommendations being sealed and approved by the President. The ruling in the Second Judges’ Case (1993) [2] decided that the recommendations of the CJI, and therefore the collegium, were binding upon the President. This granted the Judiciary “primacy” for appointments and transfers i.e., the final say.
The collegium system could thus be considered integral to maintaining the independence of the Judiciary, by not allowing its decisions to be overridden by the Executive. However, no system is without flaws, and the collegium system has been widely criticised on the grounds of being non-transparent in its functioning. The decisions of an individual are often mired with their personal biases and prejudices, and, whether consciously or unconsciously, the decisions of the collegium appear to reflect the same.
In a country such as India, which is a nexus of social factors such as caste, gender, and religion, power mustn’t be concentrated on a particular social group. However, the hegemony of the upper-caste and upper-class, and often predominantly male, persons who occupy positions of power, even in the Judiciary, has been preserved, at the expense of marginalised people. Although the decisions of the collegium are meant to be impartial and solely based on performance and experience, judges who fit the traditional image of privilege are often looked upon more favourably than those who do not.
Despite the evident flaws in the collegium system, the Supreme Court made a striking decision to repeal the NJAC. It leads one to the question of what was contained in the NJAC Act that made the Supreme Court strike down a parliamentary mandate, and choose to uphold the collegium despite admitting to its issues.
What is the NJAC?
The National Judicial Appointments Commission was introduced as a part of the 99th Constitution Amendment Act of 2014. It would consist of the Chief Justice of India, two Supreme Court Judges, the Union Law Minister and two eminent persons chosen by a panel that would in turn comprise the CJI, the Prime Minister and the Leader of Opposition in the Lok Sabha.
Recommendations for the posts and transfers of judicial officers would be made by the aforementioned panel. All recommendations would be made based on voting, and a decision is vetoed if voted against by two members. One of the two eminent persons would also have to be a member of a Scheduled Caste/Scheduled Tribe or a woman.
Various criticisms were raised concerning the extent of the involvement of the Executive in the Judiciary through the NJAC. The presence of the Union Law Minister as well as the two eminent persons in the commission, who would also be chosen partly through the Executive, brought into question the real independence of the Judiciary. Another factor brought up by several members of the legal fraternity was that the two eminent persons who were nominated were not required to be jurists or well-versed in law themselves, but would be involved in making decisions in the highest judicial authority in the country. The most striking blow to the independence of the Judiciary was the provision of vetoing any decision by ANY two members of the commission. With half of the commission members not belonging to the Judiciary, there was a real possibility of the Judiciary not having a say in its matters. The Supreme Court in its judgement repealing the NJAC Act stated that the Judiciary cannot risk being trapped in a “web of indebtedness” to the Government, making clear its stance and reasoning for the decision. Given the above factors, it is clear to see why the Court was of this opinion.
The Way Forward
While the decision to strike down the NJAC was taken eight years ago, we must observe the events that have unfolded since and reflect upon them. The collegium system has remained in place, with some effort on the part of the Judiciary to remedy the issues that the Parliament wished to address with the NJAC Act. While members of the Judiciary have continued to maintain that the process of appointments cannot be completely transparent to preserve the confidentiality of the proceedings, the Supreme Court has been willing to accept responses from both the government and petitioners concerning improvements to the collegium system.
To address the issue of representation and side-lining of marginalised candidates, a potential solution would be a clear list of reasons for rejection or approval, solely based on objective facts such as the merit, experience and track record of a candidate, of the Judiciary is unwilling to reveal the exact content and nature of the deliberations preceding the final decision. The efforts which the Judiciary has taken to be more transparent have interestingly revealed some of the actions of the Government, which appear to be in direct contradiction to their professed intentions behind the NJAC.
In 2023, the Supreme Court revealed that the Executive had been holding back on approving the names of advocates Saurabh Kirpal and John Sathyan for elevation in position. Despite previous claims for more representation through the provision of the NJAC, the Executive delayed approving the appointment of Saurabh Kirpal, based on his homosexuality and being in a relationship with a male Swiss national. The delay in the approval of John Sathyan's appointment seems even more incredulous and arbitrary, with the reason cited merely being Sathyan’s social media posts which were critical of the Prime Minister, despite them not being any evidence of his judicial knowledge or expertise.
Although the Government had previously called for much more transparency about the collegium's decisions, in a reversal of stance, Union Law Minister Kiren Rijuju now commented that the Supreme Court was wrong in revealing sensitive reports. With the executive playing a stalemate with approving appointments [3] and thus delaying the process of justice, even without primacy in the matter, a reality where it has even more power to influence decisions through the NJAC is concerning to imagine.
Considering the Government’s arbitrary changes in stance on ideas such as transparency and representation, the collegium system, although flawed, still appears to be the best option to maintain the independence and dignity of the Judiciary. Even though the judicial and collegium system is not perfect, their issues seem far more addressable and solvable than handing over another strand of power to the Government. In times when the rights of people, especially those of minorities, are being increasingly encroached upon by the people in power, a just and independent Judiciary, functioning without the intrusion of the Executive, is one of the most powerful tools and, perhaps, the last respite for the oppressed.
Article by:
Shreya G S,
Member,
PES MUN Society, RR Campus
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