Author: Utkarsh Sharma, 4th Year B.B.A. LL.B. (Hons.) student at Symbiosis Law School Pune

Abstract 

The pillars of democracy- Legislature, Executive and Judiciary are intertwined with their power and responsibilities with respect to each other, the failure to maintain this checks and balance results in exploitation of power and creates an imbalance in governance of a peaceful society. The duty of the government is towards the people and if those duties are not fulfilled then it results in the violation of rights. When the rights of citizens are violated, they approach, the judiciary for the restitution of the rights and the judiciary delivers justice to them. But what happens when the justice giver of the country are people who are opaque in their decision and give unreasonable judgements? What happens if the judgments of the judiciary are fuelled by other motives? Does independence and accountability run hand in hand or are they too very different facts of determination? Here we have discussed how the judiciary is responsible for its own composition and how it affects the justice deliverance and other organs of government. 

Keywords

Judicial appointments, Collegium System, judicial independence, executive- led appointment, the three judges’ case, rule of law, accountability, impartiality, National Judicial Appointment Commission

Objectives

The Collegium System is a critical feature of India’s judiciary, ensuring some degree of independence and autonomy to the Judiciary; it is also criticized for its lack of transparency and accountability. The study focuses on the Alternatives to the Collegium System and delves into its advantages and limitations.

The debate over the Collegium System and its alternatives raises important constitutional implications for India’s democracy and the rule of law. The principle of separation of powers requires that the executive, legislature, and judiciary operate independently of each other. Hence, the objective of the research is to study balance between judicial independence and accountability is crucial in ensuring that the judiciary is fair and transparent.

As India continues to grapple with this issue, it is clear that there is no easy solution to the challenges posed by the Collegium System. The study aims to re-examine the current system and explore alternative mechanisms that can address the flaws and limitations of the Collegium System while upholding the principles of independence and accountability.

Research Questions

1. What are the Factors responsible and detrimental to Independence of Judiciary?
2. Is NJAC really a threat to the autonomy of the institution of judiciary?
3. Are there any loopholes in the collegium system?
4. Reforms required in making an efficient judicial appointment system?

Hypothesis

Government influence in the appointment of judges may possess threat to the Independence of Judiciary.

Research Methodology

The method to carry out the research work is both inductive and deductive in nature. Qualitative method of research is primarily used. The primary sources of research work comprise of judgements of the supreme court on the invalidation of the NJAC act and analysis of other constitutional provisions. The secondary sources include Research papers, academic books, articles published in various magazines, newspapers, news hour debates on web sources. The research work is purely doctrinal form of research. 

Introduction

The Indian court system was inherited from the British colonial times and follows the system of common law in practice. the supreme court is the apex court in this system and its judgement is binding across all the High courts and subordinate courts in India. Out of the three body of a democratic government, it is the sole purpose of judiciary to provide justice to the citizens while protecting their rights and maintaining proper checks and balance across the organs of the government. To make sure that the constitution is upheld in India and justice is provided with utmost sincerity the process of appointment of esteem judges is also a well debated matter for the best outcome. 

Article 124 and 217 of the Indian Constitution provides the procedure for the establishment and constitution of Supreme Court and the High Courts of India, it notes that the SC consists of CJI and 33 other judges. The article also states that the hand and seal of the president of India is required for the appointment of judges. The process of resignation, removal qualifications and transfer of judges have also been covered under the same. 

The collegium system was introduced by Justice P. N. Bhagwati in 1993, as a result of three landmark cases, about which we will later on discuss in detail. It is not based on any article of the constitution but rather a constitutional body created to ensure that the appointment of judges is independent of any political involvement and corruption. This body comprises of the CJI and the senior most judges. The judges consult each other and approve the recommended member and the recommendation is sent to the law minister who hands it over to the prime minister and later the president for the seal of approval. 

The National Judicial Appointment Commission (NJAC) was an independent governing body which was bestowed with the task of appointment of judges of supreme court and high courts in a more transparent and participatory way compared to the collegium system, which it would have replaced. The National Judicial Appointment Commission Bill was introduced in the Lok Sabha in 2014 by the Minister of Law and Justice, Ravi Shankar Prasad. The bill was approved by both the houses and received the assent of the president.

In the literature review section, we will be critically analysing the judicial independence and the appointment of judges to the higher judiciary in India, by Arghya Sengupta. 

Collegium System Origin

The collegium system was introduced by Justice P. N. Bhagwati in 1981, in S. P. Gupta v Union of India (The First Judges’ Case). The collegium is not mentioned in the constitution but rather is a constitutional body pronounced by judicial decision to ensure that the appointment of judges, independent of any political involvement and corruption. The collegium’s original idea stemmed from the recommendations made by the Bar Council of India in the year 1981, in Ahmedabad during a conference of advocates from all over the nation. It was suggested that the appointment should be made with a composition of the highest scholars of the judiciary, which included: 

1. The Chief Justice of India
2. Five seniors most judges of the Supermen Court 
3. Two persons representing the Bar Council of India and Supreme Court Bar Association

The recommendation also gave executive the power of recommendation on particular grounds, which was to uphold the doctrine of checks and balance between the government organs. Later in the Sankalchand Sheth Case, Justice Krishan Iyer laid down the proposition of consultation, and it is different from consentaneity. Where it was classified that the executive may give his opinions to the panel, may or may not concur. 

However, in the first judges’ case, Justice P. N. Bhagwati expressed his dissatisfaction with the system of appointment of judges, as most of the power was handed over to the president in case of appointment, where the president’s selection might be based on other factors influenced by political and personal agenda and because of his lack of expertise in the field of law and judiciary he was held to not be fit for the appointment of judges as it was a very crucial and sensitive matter. He also suggested that a collegium should be in place where the experts of law and justice get the upper hand In the selection of the judges but at the same time they would need the assent of the president to finalise the candidate, this also ensured checks and balance in the system. 

It was proposed that a collegium should be established through passing the bill under article 124 (2) and 217 (1) of the Indian constitution. Although this had been already suggested, in the year 1993, a nine- judge constitutional bench of supreme court during the trails of the second judges’ case led to the setting up of collegium and in the thirst judges’ case the tasks and responsibilities of the collegium were further defined. This is how the current collegium system came into being. 

The National Judicial Appointment Commission (NJAC) was an independent governing body which was bestowed with the task of appointment of judges of supreme court and high courts in a more transparent and participatory way compared to the collegium system, which it would have replaced. The National Judicial Appointment Commission Bill was introduced in the Lok Sabha in 2014 by the Minister of Law and Justice, Ravi Shankar Prasad. The bill was approved by both the houses and received the assent of the president. It was supposed to replace the collegium and make the appoint of judges a more transparent process. The bill highlighted the process of appointment, transfer, and removal of judges through different processes. It also laid down the judicial standards for accountability on the part of judiciary. It also had a mechanism for investigating cases of mistrial, incapacity of the judges, malfunction of judiciary, misbehaviour or when complains arise inside the judicial body. 

The NJAC was composed of the CJI, 2 of the senior judges of Supreme Court, the union minister of law and justice and two eminent persons who would be selected by the committee which would be presided by the CJI, prime minister and Leader of Opposition in the Lok Sabha, the other eminent person was to be representative of the socially marginalised community of citizen (SC/ST/OBC/Minority or Women). 

Literature Review And Critical Analysis

The appointment of judges and the independence of judiciary are very much co-related and are carried forward for the same view of justice to be delivered with impartiality and diligence because the responsibility to protect and preserve the right of the citizens falls upon the judiciary. In the following paper the conflict with the independence of judiciary in accordance with other political factors have been analysed. The appointment of judges has been a part of controversy even before the independence and during the colonial era. During the colonial era also, the judges were directly appointed by the crown and were also removed as per its command, the officials chosen for the post of judges were English men who were in no way relatable with the daily life and struggles of the Indians, they also had to uphold the colonial rule and supress the people and actions of rebels and thus their judgements were very unreasonable and harsh for even petty crimes. Their judgements were clouded by their factor of being the colonial rulers and upholding the colonial rule. Post-independence the method of appointment of judges has undergone a lot of changes and reform in order to reach a better version of it born form. The process of appointing of judges for more independence with accountability is everchanging with the times when the meaning of independence also keeps changing with time. 

In India, the constitution didn’t want to involve the executive with the process of appointment of judges because then the appointments would be more political agenda based and thus lead to executive led appointments, which doesn’t upload the doctrine of division of power and thus violating the basic structure of constitution. Even during the early independence time, the government started interfering with the composition of judiciary which started leading the erosion of the justice system in the country. The supreme court through three landmark cases, the three judges’ case, laid down the calcifications with the appointment of judges. In S. P. Gupta v Union of India (The First Judges’ Case), the court held that the judicial independence was in no way related to the opinion of CJI being supreme in the matter of transfer and appointment, he just had the role of a consultant. Albeit his opinion would not be dismissed and would be upheld “primarily” but the last word would be of the executive itself. This judgement gave the executive the leverage over judiciary for over 12 years. This interpretation of the provision given under article 124 failed to secure judicial independence. Based on the failing of safeguards against judiciary and the executive led appointments the Supreme Court in the case of Supreme Court Advocates-on-Record Association v Union of India (‘SCAORA/ The Second Judges’ Case) overruled the first judges’ case and hereby made permanent modifications to the process of appointment of judges. This established the current collegium system which is followed in the present system for the appointment of judges. This enabled the CJI to act as the paterfamilias of the appointment council, this change was made for preserving judicial independence. It also took into account the suggestions made by the Law Commission three decades earlier, that judiciary should be the prime executive in determining their composition and have full independence in doing so, to keep politics and corruption out of the judicial system. The task of the collegium system was further defined in the case of Special Reference No.1 of 1998 (The Third Judges’ Case). The supreme court further defined that the CJI of India would act after consulting the opinion of the four seniors most judges of the supreme court and two of the senior most judges for high court, in order to appoint the judges. This judgement increased the number of people to five to be present in the collegium. But this judgement also lacked proper backdrop and reasoning for the difference in the size of collegium and how it would be determined and affect the system, what would be the criteria for the judge to be present in the collegium. 

Through this the decision-making power rests with the collegium and the judiciary and the president had the role of being the hand on the seal. The due process laid down by this case is what is still practiced in the present collegium system. But even after so many judgments and suggestion the process remained opaque as the reason for the appoint were not made public, the process lacked transparency, which could in fact lead to personal favours and corruption. This also leads to wider public dissent as lack of transparency in the process caused a lot of public resent as the judge’s decision was not answerable to the public and thus also violated the doctrine of checks and balance as all the power was held by the judiciary exclusively. 

The need for independence of judiciary came with the cost of detachment between the judges and other governing bodies, and the public. This made the decisions made by the judges to be questioned that it is based on extraneous reasons, which aren’t viable ground pf appointment. The missing accountability of the judges towards public made the whole process of collegium to be questioned and then for it to be replaced by a better constitutional body i.e., NJAC. 

In Supreme Court Advocates on Record Association v Union of India, which is also known as The Forth Judges’ Case, the validity of the 99^th amendment of the constitution which was made to make NJAC a constitutional body and replace the collegium as an appointment committee was challenged before the supreme court, on the ground of being unconstitutional. The NJAC distributed power across the government organs and gave the executive greater power in decision making. This was done to ensure that there is transparency and accountability in the process of appointment. The judges passed a judgement with a majority of 4:1 and upheld NJAC to be in violation of the basic structure of the constitution, as it violated the doctrine of separation of power and infringed with the independence of the judiciary and thus NJAC was struck down and the collegium system was upheld. But Justice Lokur addressed the concerns in the name of transparent and accountability of the which were treated in violation of right of privacy of the candidates as it could hurt the reputation and safety of the candidates by releasing personal and sensitive information to public, the Right of Privacy of a person should not be violated in order to uphold a persons’ Right to Know. 

Critiques Of Collegium System

The appointment of judges and the independence of judiciary are very much co-related and are carried forward for the same view of justice to be delivered with impartiality and diligence because the responsibility to protect and preserve the right of the citizens falls upon the judiciary. In the following paper the conflict with the independence of judiciary in accordance with other political factors have been analysed. The appointment of judges has been a part of controversy even before the independence and during the colonial era. During the colonial era also, the judges were directly appointed by the crown and were also removed as per its command, the officials chosen for the post of judges were English men who were in no way relatable with the daily life and struggles of the Indians, they also had to uphold the colonial rule and supress the people and actions of rebels and thus their judgements were very unreasonable and harsh for even petty crimes. Their judgements were clouded by their factor of being the colonial rulers and upholding the colonial rule. Post-independence the method of appointment of judges has undergone a lot of changes and reform in order to reach a better version of it born form. The process of appointing of judges for more independence with accountability is everchanging with the times when the meaning of independence also keeps changing with time. 

In India, the constitution didn’t want to involve the executive with the process of appointment of judges because then the appointments would be more political agenda based and thus lead to executive led appointments, which doesn’t upload the doctrine of division of power and thus violating the basic structure of constitution. Even during the early independence time, the government started interfering with the composition of judiciary which started leading the erosion of the justice system in the country. The supreme court through three landmark cases, the three judges’ case, laid down the calcifications with the appointment of judges. In S. P. Gupta v Union of India (The First Judges’ Case), the court held that the judicial independence was in no way related to the opinion of CJI being supreme in the matter of transfer and appointment, he just had the role of a consultant. Albeit his opinion would not be dismissed and would be upheld “primarily” but the last word would be of the executive itself. This judgement gave the executive the leverage over judiciary for over 12 years. This interpretation of the provision given under article 124 failed to secure judicial independence. Based on the failing of safeguards against judiciary and the executive led appointments the Supreme Court in the case of Supreme Court Advocates-on-Record Association v Union of India (‘SCAORA/ The Second Judges’ Case) overruled the first judges’ case and hereby made permanent modifications to the process of appointment of judges. This established the current collegium system which is followed in the present system for the appointment of judges. This enabled the CJI to act as the paterfamilias of the appointment council, this change was made for preserving judicial independence. It also took into account the suggestions made by the Law Commission three decades earlier, that judiciary should be the prime executive in determining their composition and have full independence in doing so, to keep politics and corruption out of the judicial system. The task of the collegium system was further defined in the case of Special Reference No.1 of 1998 (The Third Judges’ Case). The supreme court further defined that the CJI of India would act after consulting the opinion of the four seniors most judges of the supreme court and two of the senior most judges for high court, in order to appoint the judges. This judgement increased the number of people to five to be present in the collegium. But this judgement also lacked proper backdrop and reasoning for the difference in the size of collegium and how it would be determined and affect the system, what would be the criteria for the judge to be present in the collegium. 

Through this the decision-making power rests with the collegium and the judiciary and the president had the role of being the hand on the seal. The due process laid down by this case is what is still practiced in the present collegium system. But even after so many judgments and suggestion the process remained opaque as the reason for the appoint were not made public, the process lacked transparency, which could in fact lead to personal favours and corruption. This also leads to wider public dissent as lack of transparency in the process caused a lot of public resent as the judge’s decision was not answerable to the public and thus also violated the doctrine of checks and balance as all the power was held by the judiciary exclusively. 

The need for independence of judiciary came with the cost of detachment between the judges and other governing bodies, and the public. This made the decisions made by the judges to be questioned that it is based on extraneous reasons, which aren’t viable ground pf appointment. The missing accountability of the judges towards public made the whole process of collegium to be questioned and then for it to be replaced by a better constitutional body i.e., NJAC. 

In Supreme Court Advocates on Record Association v Union of India, which is also known as The Forth Judges’ Case, the validity of the 99^th amendment of the constitution which was made to make NJAC a constitutional body and replace the collegium as an appointment committee was challenged before the supreme court, on the ground of being unconstitutional. The NJAC distributed power across the government organs and gave the executive greater power in decision making. This was done to ensure that there is transparency and accountability in the process of appointment. The judges passed a judgement with a majority of 4:1 and upheld NJAC to be in violation of the basic structure of the constitution, as it violated the doctrine of separation of power and infringed with the independence of the judiciary and thus NJAC was struck down and the collegium system was upheld. But Justice Lokur addressed the concerns in the name of transparent and accountability of the which were treated in violation of right of privacy of the candidates as it could hurt the reputation and safety of the candidates by releasing personal and sensitive information to public, the Right of Privacy of a person should not be violated in order to uphold a persons’ Right to Know. 

Conclusion And Future Outlooks For Reform

In conclusion we can say that the present collegium system still lacks transparency and accountability, but these are not our only concerns it also lacks independence from personal opinion which leads to impartial decisions, lacks wider participation and further checks and a reasoning for the appointment of the judges. 

In the present changing times with the public being more aware about who is governing them or providing them with justice, the collegium should reconsider its process of appointment, here I have listed some suggestions based on the same: 

• Provide a reasoned documents for the appointing of the judges and reform its means in order to gain wider public support for the judges in office. Accountability and transparency would ensure that the decisions made are not done on a personal basis but for the best deliverance of justice and to make sure that the element of extraneous considerations as ground for the appointment. 
• Proper guidelines, ground of testing and criteria should be laid down in order to give a clearer view of the appointment of the judges. 
• The judges should be made answerable to any one organ of the government for their decision, this would also uphold the doctrine of checks and balance. 
• To make sure that nepotism, which has been seen several times in judiciary should not cause a bias towards the candidates with a legacy.
• It lacks diversity in the representation of women, India has never had a female CJI to preside over. And with the change in times and activism in the rights of LGBTQIA Community, their representation also lacks. 
• The judiciary only consists of aged people and a fresh perspective of youth is also something which goes missing.
• Other specialised personals could also be introduced in the appointment committee, who can act as an amicus cure for the court. 

When the burden is to deliver justice and be the guardian of the constitution, then the liability is also big and so is the responsibility. the collegium system was introduced in1993 and has been operative ever since, even after the introduction of the NJAC Act in 2014. The issue of transparency and accountability has been an old one and still and unaddressed concern and all the judgements have been left on speculations and as far as speculations goes is beyond justifiable ground of appointment. 

Bibliography

• Arghya Sengupta, Judicial Independence and the Appointment of Judges to the Higher Judiciary in India: A Conceptual Enquiry, 5 INDIAN J. Const. L. 99 (2011-2012). 

• Privacy Law Library, Centre for Communication Governance at National Law University Delhi (CCG), Supreme Court Advocates-on-record Association & Anr. vs. Union of India.

• Writer_4, Establishment and Constitution of Supreme Court under Article 124 of the Constitution, 1^st May, 2023, SCC Online Blog.

• National Judicial Appointment Commission Bill 2014 (99^th amendment), Acts of Parliament, 2014

• S. P. Gupta v Union of India, AIR 1982 SC 149

• Supreme Court Advocates-on-Record Association v Union of India, (1993) 4 SCC441

• Special Reference No.1 of 1998, (1998) 7 SCC 739

• Supreme Court Advocates on Record Association v Union of India, (2016) 5 SCC 1, (2016) 2 SCC (LS) 253 

• The National Judicial Appointments Commission Bill, 2014, 99^TH Amendment, Acts of Parliament.