ISSN : 2581-8465

Author : Devika Agarwal

LLB, O.P.Jindal Global University, Sonipat, Haryana

Abstract:

This paper, “Whether the present collegium system makes Judiciary in India an independent and transparent wing or not?” starts off by tracing the three eminent cases related to the collegium system- The First Judges Case where the term consultation was not read as concurrence in A.124 (2), The Second Judges Case where these two words were read in consonance and lastly, The Third Judges Case upheld the previous case but introduced a new form of composition. Unfortunately, this was struck down and finally the NJAC was introduced but this too was held to be unconstitutional and the collegium system was restored. The paper also compares the NJAC to Collegium system- one includes executive and other non-judicial members, which can take away the independence of this wing and the other gives the judiciary supremacy. It further poses two main questions– , even if there is involvement of the executive to appoint and transfer the judges, will it violate the liberty of the judiciary? And how can a balance be maintained between the two extremes? It concludes by mentioning that minimum intervention of the executive should be allowed and a balance between the two models must be struck. All the above elements and questions have been discussed in the paper and leaves enough room for discussions among the readers as to what should be done to keep the democracy alive, what checks and balances must be maintained and how should the executive be allowed to intervene? 

Whether the present collegium system makes Judiciary in India an independent and transparent wing or not?

I.INTRODUCTION

In one of the Constituent Assembly Debates, Dr. B.R. Ambedkar pointed out how important for the Judiciary in India to be “competent”and “independent of executive”[1]. However, in the First Judges Case[2], words like“consultation” in the Constitution of India,[3] Article 124(2) was not to be read as “concurrence”, which means that the Chief Justice of India would not have the ultimate verdict, the President was indirectly given the veto power. Subsequently, in the Second Judges Case[4], collegium system was introduced and the term “consultation” was read as “concurrence” in Article 124(2)[5] and 127. The executive would only keep an eye on the Judiciary but the names recommended by Chief Justice of India with the consultation of two of his senior most colleagues would be taken into consideration. And finally, in the Third Judges Case[6] the previous case was upheld, but to reduce conflict of interests and vagueness, the composition of the collegium was increased, so along with four senior judges, the Chief Justice of India would recommend names, and if the President asks them to reconsider it but the same names are sent again, the Executive will be compelled to appoint them. This system was looked down upon for not being transparent and arbitrary, and consequently, the National Judicial Appoints Commission(NJAC) was introduced, which would comprise of Chief Justice of India, two senior-most Judges of the Supreme Court, Union Minister of Law and Justice, and two imminent people recommended by Prime Minister, CJI and Leader of the Opposition. This too was held to be unconstitutional and was struck down in 2015, as it was considered to violate the basic structure and mix up the separation of powers, so the collegium system was put back[7]. This paper would like to analyze whether the present collegium system makes judiciary in India an independent and transparent wing or not. It further draws a comparison between the previous system and the present oneto suggest ways of reformation.

II.NJAC v. COLLEGIUM SYSTEM

The NJAC Act[8] was criticized heavily on three grounds. First being the composition of it, out of six, only three were from judiciary, so this might have political implications over the appointment and transfer of the judges which would affect the basic structure. Secondly, the definition of imminent persons has also not been clearly constructed. Thirdly, recommendations made by this commission would not be forwarded if any two members do not agree to it, this veto power too can affect the independence[9]. Also, independent organ could take steps to look into the workings and behavior of the judges could be taken[10].

Whereas on the other hand, Collegium system was deprecated because the working of the judiciary was not transparent, potential people might not be considered without a valid reason. Secondly, a lot of power had been vested in the hands of the Judiciary. There were no measures to maintain an equilibrium[11]. Also, the Judiciary has read too much into the provisions, because if the Constitution drafters at all had an intention of incorporating a collegium, then they would have mentioned it[12]. Therefore, the judiciary seems to not only be an independent body but in fact has immense power in its hand.

III.INDEPENDENCE OF THE JUDICIARY AND REFORMED COLLEGIUM SYSTEM

After analyzing the two systems, it is clear that the former includes executive and other non-judicial members, which can take away the independence of this wing and the latter gives the judiciary supremacy. This poses two questions, first, even if there is involvement of the executive to appoint and transfer the judges, will it violate the libertyof the judiciary, i.e., is independence linked specifically to transfer and appointment, and second, how can a balance be maintained between the two extremes.

For the first question it can be said that if the involvement of executive is encouraged in the appointment of the judges, then in no way should this interfere with its independence or violation of the basic structure. The point of having an autonomous judicial wing allows the judges to come up with independent decisions and carry out their functions without any intervention from the executive or legislature, which in any case will happen. Further, there are safeguards for judiciary already in terms of having fixed tenure, no reviewing of the proceedings and office[13].

And for the second question, to ensure independence, there has to be adequate amount of transparency, which can be done by the intervention of the executive to maintain an equilibrium. Power cannot be handed over to only one of the wings[14]. Also, if at all only the collegium system has to be followed, there has to be absolute transparency for appointment, should not have a dearth of women judges, strict criteria and an application process with a “rigorous scrutiny” for the candidates should be established[15].

V.CONCLUSION

This paper firstly concludes that the judiciary wing of India is independent, so much so that the “judges appointed by judges” system has placed immense power in the hands of the judiciary and is not even transparent and answerable which in turn kills the essence of the Constitution and Democracy[16]. There is a need to have “checks and balances”. Therefore, to address this, minimum intervention of the executive should be allowed and a balance between the two models must be struck. Veto power of the judiciary in the collegium system and of the executive in the NJAC needs to be done away with[17]. Now, if again due to the involvement of judiciary, the question of independence is posed, then it is important to understand that the independence of judiciary is by no means solely linked to appointing of judges, space to exercise personal decision making and other safeguards like tenure and protection of office is still in place. The NJAC system which allowed the Executive to have a say was like an “old wine in a new bottle” as its aim was to make judiciary independent and transparent, but in a manner different from the collegium system.

And if not this model, then the suggested reforms with respect to transparency of appointment, diversity and open application process must be adopted in the already existing collegium systemto keep the democracy alive.


[1]Constituent Assembly of India- Volume III,https://cadindia.clpr.org.in/constitution_assembly debates/volume/8/1949-05-23

[2]S.P. Gupta v. Union of India, 1981SuppSCC87.

[3]INDIA CONST. art. 124, cl.2.

[4]Supreme Court Advocates-on-Record Assn. v. Union of India, (1993)4SCC441

[5] INDIA CONST. art. 124, cl.2.

[6]Under Article 143(1) Of The … vs Unknown (The Third Judges Appointments Case), AIR1999SC1

[7]Nimisha Gupta &PragyaRathi, National Judicial Appointments Commission: A Perfect Substitute of Collegium? 3 KIIT SudentL.Rev. 63, 65 (2016).

[8] The National Judicial Appointments Commission Act, 2014, No. 96, as introduced in LokSabha (India)

[9]Justice A.K. Patnaik, A Critique of the NJAC Judgment, 3 J NLUD 17, 18,22,23,24,  (2015-2016).

[10]PrashantBhushan, Securing Judicial Accountability: Towards an Independent Commission, 42 Economic and Political Weekly. 14, 16 (2007).

[11]Nimisha Gupta &PragyaRathi, National Judicial Appointments Commission: A Perfect Substitute of Collegium? 3 KIIT SudentL.Rev. 63, 65 (2016).

[12]ShivkritRai&Nipun Arora, Judicial Appointments is India- A Critical Analysis, THE SCC BLOG ONLINE (May 23, 2017), http://blog.scconline.com/post/2017/05/23/judicial-appointments-in-india-a-critical-analysis/#_ftn4

[13][13]ShivkritRai&Nipun Arora, Judicial Appointments is India- A Critical Analysis, THE SCC BLOG ONLINE (May 23, 2017), http://blog.scconline.com/post/2017/05/23/judicial-appointments-in-india-a-critical-analysis/#_ftn4

[14]Nimisha Gupta &PragyaRathi, National Judicial Appointments Commission: A Perfect Substitute of Collegium? 3 KIIT SudentL.Rev. 63, 65 (2016).

[15]C. Rak Kumar, Future of Collegium System Transforming Judicial Appointments for Transparency, ECONOMIC AND POLITICAL WEEKLY. 50 (2015).

[16]PrashantBhushan, Securing Judicial Accountability: Towards an Independent Commission, 42 Economic and Political Weekly. 14, 16 (2007)

[17]Nimisha Gupta &PragyaRathi, National Judicial Appointments Commission: A Perfect Substitute of Collegium? 3 KIIT SudentL.Rev. 63, 65 (2016).

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