INTRODUCTION
It cannot be disputed that judicial activism is now a paramount feature of many political systems around the world, the scope of each practice varying according to the independence & power of judiciary.[1] Judicial Activism denotes an attempt at interpretation taking into consideration factors such as self-understanding, social relevance, social changes etc. In Common Law countries such as India, judges have a responsibility & duty to pursue the various goals laid down in the Constitution. In the Indian context, the Apex Court acts as the harbinger of Judicial Activism.[2]
Spanning several years, the common perception regarding the appointment process of judges, is that the role of judges in selection is indispensible. Furthermore, the role of value-preferences & beliefs of judges under the wider ambit of judicial activism has also been considered.[3] In light of the emerging and dominant role of the judges in the appointment of judges, the National Judicial Appointments Commission (NJAC) was proposed, to counter the collegium system followed. At present, the collegium system continues to be followed in the Indian context, which is required in order to preserve the sanctity of the judicial institution in the Indian scenario.
COLLEGIUM SYSTEM
In the Indian context, Article 124(2) and Article 217 of the Indian Constitution pertain to the appointment of judges to the Supreme Court and High Court Respectively. The Collegium system of appointment is a system that stems and evolves from certain judgments laid down by the Supreme Court, the Apex Court in India, and has no statutory basis whatsoever. The below-mentioned judgments paved the way for the evolution of collegium system.
S.P. Gupta v. Union of India (1981)
In S.P. Gupta v. Union of India (1981)[4], also referred to as the “First Judges Case”, the question regarding whether “consultation” with the judiciary on the matter of appointments, meant “concurrence”, was raised before the court. The erstwhile Chief Justice of India ruled that consultation does not mean concurrence, & therefore the recommendations made by the Hon’ble Chief Justice of India regarding judicial appointments are not binding on the president. This judgment displayed the overshadowing of the power of judiciary in judicial appointments.
This judgment, which displayed the prowess of the executive over the judiciary, was resented because of the assertion of the executive over the judiciary, and was widely perceived as an attempt to muzzle the independence of the judiciary in India.[5]
S.C. Advocates-on-Record Association v. Union of India (1993)
In S.C. Advocates-on-Record Association v Union of India (1993)[6], also referred to as the “Second Judges Case”, the Hon’ble Supreme Court overruled its earlier decision laid down in the First Judges Case. The Court categorically stated that the expression “consultation”, that is embedded in the text of the constitution, means “concurrence”, thereby meaning that recommendations made by the Hon’ble Chief Justice of India to the President regarding judicial appointments shall be binding in nature.
While this judgment garnered acceptance from various quarters, it was also criticized on the ground that it set-up the judiciary at a pedestal, thus leading to the watering down of constitutional provisions actually meant at keeping the ambit of judicial appointments democratically fair. However, in a wider context, the judgment was well received as it was perceived as an attempt to ward away political interferences in judicial appointments.[7]
Re: Special Reference No. 1 (1998)
In Re: Special Reference No. 1 (1998)[8], simultaneously referred to as the “Third Judges Case”, the broader dimensions of the role, jurisdiction, functioning & mandate of Supreme Court came into question. This case arose in the year of 1998, when the erstwhile President of India sent an official notice seeking the advisory opinion of the Apex Court regarding its stand & view on Judicial Appointments in India. The Court answered, stating that a “collegium” of judges shall be responsible for appointment of judges in the higher judiciary, thus shaping the concept of collegium.
In the Third Judges case, the composition of collegium was expanded in order to address various concerns regarding arbitrariness and bias, and was generally welcomed by the Indian populace.[9]
However, Allegations have been raised regarding the workings of the Collegium in light of the judgments in 2nd & 3rd Judges Case, to the extent that the executive has a minimal to no role in the selection procedure of the judiciary.[10] It was stated by the Parliamentary Standing Committee on Home Affairs (2001) that the liability for wrongdoings of the judiciary cannot be saddled on the executive, since the power of judicial appointments is solely vested in the judiciary.[11] There is a growing consensus with regards to perceiving the collegium system as a glaring manifestation of arbitrariness of the judiciary.[12] Thus, failed attempts at a National Judicial Appointments Commission (NJAC) were made by the National Commission to Review the Working of the Constitution (2002), & thereafter, the 98th Amendment Bill, 2003, after which the 99th Constitutional Amendment Act (2014) introduced the short-lived National Judicial Appointments Commission.
NATIONAL JUDICIAL APPOINTMENTS COMMISSION (NJAC)
National Judicial Appointments Commission (NJAC) was proposed as the body that would have given powers to both the executive and the judiciary to appoint judges to higher judiciary. Passed by both houses of parliament in 2014, it was termed as “unconstitutional” by a Constitutional Bench of the Supreme Court and now stands repealed.[13] Many see this as an attempt of the judiciary to preclude other branches such as legislature & executive from “interfering” in judicial appointments, however, contrary views also express concern over how it leads to an oligarchical methodology of appointment of judges in the higher judiciary.[14]
The 99th Constitutional Amendment provided for the composition of a body called “National Judicial Appointments Commission”, a potential body which would have been responsible for appointment of judges to High Courts & Supreme Court of India. The Commission was established in accordance with the 99th Constitutional Amendment to the Indian Constitution (2014)[15], passed by both the Houses of Parliament.
While the Upper House of the parliament passed the act on 13th August, 2014, it was passed by the Lower House of the parliament a day after. However, it was struck down by the Fourth Judges’ Case due to its scope for excessive interference by the executive thus compromising on the independence of judiciary.
CONCLUSION
The criticisms against the collegium system cast a shadow of doubt on the overall efficiency of the system. However, it is imperative that this system continues in the interests of transparency, accountability, and smooth functioning of the judiciary, as the National Judicial Appointments Commission leaves wide berth for political interference in the judicial process thus paving the way for favoritism, partisan-politics and also compromises on the system of checks and balances laid down under the constitution.
Further, the 99th Constitutional Amendment Act 2014, which aimed at setting up the National Judicial Appointment Commission (NJAC), was rightly dismissed by the judges in the fourth judges’ case. The amendment was struck down by the Supreme Court for being unconstitutional on 16 October 2015, with a 4:1 majority. In the present scenario, National Judicial Appointments Commission is not required in order to safeguard the judiciary from vested interests and collegium system must continue and evolve, as it will serve as a messiah for the Indian Judicial System in the long run.
[1] P. N. Bhagwati, Judicial Activism and Public Interest Litigation, 23 COLUM. J. Transnat’l L. 561 (1985).
[2] Nupur Chowdhury, From Judicial Activism to Adventurism – The Godavarman Case in the Supreme Court of India, 17 Asia PAC. J. ENVTL. L. 177 (2014).
[3] Abhinav Chandrachud, Does Life Tenure Make Judges More Independent: A Comparative Study of Judicial Appointments in India, 28 CONN. J. INT’l L. 297 (2013).
[4] S.P. Gupta v Union of India, (1981) Supp SCC 87.
[5] Jill Cottrell, “The Indian Judges’ Transfer Case”, (1984) 33 Intnl. & Comp. L. Q. 1032; H M Seervai, Constitutional Law of India, Vol. III, 4th Edn. (New Delhi: Universal Law Publishing Co. Pvt. Ltd 2010) at 2275
[6] S.C. Advocates-on-Record Association v Union of India, (1993) 4 SCC 441.
[7] H M Seervai, Constitutional Law of India, Vol. III, 4th Edn. (New Delhi: Universal Law Publishing Co. Pvt. Ltd 2010) at 2927-70;P C Rao, ‘Use and Abuse of the Indian Constitution’ (1998)
[8] Re: Special Reference No. 1, (1998) 7 SCC 739.
[9] Ravi Kiran Jain, ‘Who will judge the judges?’ Bar & Bench, Stable URL- https://www.barandbench.com/brief/3/1014/who-will-judge-the-judges
[10] Verma J. S, ‘Judicial Independence: Is It Threatened? online: www.hcmadras.tn.nic.in/ jacademy/articles/ Judicial%20Independence-Is%201t%20Threatened-JS%20VERMA.pdf;
[11] Parliament of India, Rajya Sabha, Parliamentary Standing Committee on Home Affairs, 85th Report on Law’s Delays & Arrears in Court.
[12] Baxi Upendra, “Introduction”, in I.P. Massey, Administrative Law, 6th Edn (Calcutta: Eastern Book Company, India 2005)
[13] B Nagarthnam Reddy, Judicial Activism v Judicial Overreach in India, Global Journal for Research Analysis, Volume 7 Issue 1, January 2018.
[14] Purush Purushothaman, Higher Judicial Appointments in India – The Dilemma and the Hope: Trusting the Wisdom of the Generations, 8 NUALS L.J. 101 (2014).
[15] The Constitution (Ninety-Ninth Amendment) Act, 2014. Stable URL-
http://www.egazette.nic.in/WriteReadData/2014/162235.pdf
YLCC would like to thank its Content Team for their valuable insights in this article.
